Long Beach Unified School District (PERB 0608E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

TEACHERS ASSOCIATION OF LONG BEACH,
Charging Party, Case No. LA-CE-1329
LONG BEACH UNIFIED SCHOOL DISTRICT, January 7, 1987

)
)
Ve ) PERB Decision No. 608
)
)
)
Respondent. )

)

Appearances: A. Eugene Huguenin, Jr., Attorney for Teachers
Association of Long Beach; McLaughlin & Irvin by Gale P.
Sonnenberg for Long Beach Unified School District.

Before Burt, Porter and Craib, Members.
DECISION

PORTER, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the Long
Beach Unified School District (District or Respondent) and the
Teachers Association of Long Beach (TALB, Association or
Charging Party) to the attached proposed decision of a PERB
administrative law judge (ALJ). The ALJ found that the District
violated section 3543.5(a) and (b) of the Educational Employment

Relations Act (EERA or act)+ by adopting and applying rules

ImERA is codified at Government Code section 3540 et seq.
Uniess otherwise indicated, all statutory references herein are
to the Government Code. Section 3543.5 provides, in relevant
parts

It shall be unlawful for @ public school
employer to:

and
	regulations
	which
	the
	ALJ
	found
	interfered
	with
	employee
organizations
1
right
	of
	access
	to
	employees
	as
	granted
	by
2
section
	3543.l(b)
	of 	the
	Act.
	However,
	the
	ALJ
	also
	found
that
	the 	Association
	waived
	its
	right
	to
	object
	to
	certain
	of
the
	rules
	based
	on
	provisions
	the
	parties
	agreed
	to
	in
	their
collective
	bargaining
	agreement.
	For
	the 	reasons
	which
	follow,
we
	affirm
	in
	part
	and
	reverse
	in
	part
	the 	proposed
	decision.
FACTS
Having 	reviewed
	the 	exceptions 	of 	the
	parties
	and
	the
	entire
record 	in
	this
	case,
	we
	determine
	that
	the
	findings 	of
	fact
	in
the
	proposed
	decision 	are 	free
	from
	prejudicial 	error
	and
	we
therefore
	adopt
	them
	as 	the 	findings 	of 	the
	Board
	itself.
	We
summarize
	the
	pertinent
	facts
	merely
	for 	ease 	in 	following 	the
ensuing
	discussion.
(a)	
Impose
	or 	threaten 	to
	impose
	reprisals
on
	employees,
	to 	discriminate
	or
	threaten 	to
discriminate 	against
	employees,
	or 	otherwise
to
	interfere
	with,
	restrain,
	or 	coerce
employees
	because 	of
	their
	exercise 	of
rights
	guaranteed
	by
	this 	chapter.
(b)	
Deny
	to
	employee
	organizations 	rights
guaranteed 	to
	them 	by
	this 	chapter.
2section 	3543.l(b)
	states
1
	in 	relevant 	part:
Employee
	organizations 	shall
	have 	the
	right
of 	access
	at
	reasonable 	times 	to 	areas 	in
which 	employees
	work
	..
	:
	subject 	to
reasonable 	regulation,
	and
	the 	right 	to
	use
institutional 	facilities 	at
	reasonable 	times
for 	the 	purpose 	of 	meetings 	concerned 	with
the 	exercise 	of 	the 	rights 	guaranteed 	by
this 	chapter.
2

PERB 	Decision 	No. 	130
In 	1976, 	the 	District 	promulgated 	regulations 	governing
access 	to 	its 	facilities 	by 	employee 	organizations. 	Approximately
one 	year 	later, 	during 	an 	election 	campaign 	for 	selection 	of 	an
exclusive 	representative 	for 	the 	bargaining 	unit 	that 	included
the 	teachers, 	one 	of 	the 	competing 	organizations, 	the 	Long 	Beach
Federation 	of 	Teachers 	(Federation), 	filed 	an 	unfair 	practice
charge 	against 	the 	District 	claiming 	that 	some 	of 	the 	regulations
unreasonably 	denied 	it 	access 	to 	members 	of 	the 	unit. 	One
allegation 	was 	that 	the 	District 	had 	engaged 	in 	conduct 	favoring
a 	rival 	organization, 	TALB. 	During 	the 	hearing 	on 	the 	matter,
TALB 	joined 	as 	a 	party 	but 	later 	withdrew 	when 	that 	allegation
was 	settled. 	Prior 	to 	the 	issuance 	of 	the 	proposed 	decision 	in
that 	case, 	TALB 	was 	certified 	as 	the 	exclusive 	representative 	of
the 	teachers 	unit. 	Shortly 	thereafter, 	the 	District 	and 	TALB
entered 	into 	a 	"mini-contract" 	and 	commenced 	negotiations 	for 	a
more 	comprehensive 	agreement. 	One 	of 	the 	subjects 	under
negotiation 	was 	Association 	access 	rights.
Prior 	to 	the 	parties 	reaching 	agreement 	1n 	those 	negotiations,
the 	ALJ 	issued 	a 	proposed 	decision, 	which 	resulted 	in 	exceptions
being 	filed 	with 	this 	Board 	by 	both 	the 	Federation 	and 	the
District. 	Before 	the 	Board 	issued 	its 	decision, 	the 	District
and 	TALB 	executed 	a 	comprehensive 	bargaining 	agreement 	on 	May 	21,
1979. 	This 	agreement 	included 	an 	article 	on 	Association 	rights,
including 	access, 	as 	well 	as 	an 	article 	which 	defined 	the 	workday
for 	bargaining 	unit 	members. 	Negotiations 	under 	the 	reopener
3

provision 	commenced 	in 	the 	spring 	of 	1980@ 	Access 	was 	not 	a
topic 	that 	was 	automatically 	reopened, 	nor 	did 	either 	party
elect 	to 	reopen 	that 	subject 	with 	their 	optional 	reopeners.
On 	May 	28, 	1980, 	PERB 	issued 	its 	decision 	in 	Long 	Beach
Unified 	School 	District 	(1980) 	PERB 	Decision 	No. 	130. 	In 	that
decision 	the 	Board 	ruled 	that, 	in 	analyzing 	a 	claimed 	denial 	of
access, 	the 	Board 	must 	determine 	whether 	the 	employer's 	regulation
falls 	within 	the 	employer's 	right 	to 	establish 	"reasonable"
regulations. 	In 	determining 	whether 	an 	employer's 	regulation 	of
access 	rights 	is 	reasonable, 	the 	Board 	will 	consider 	whether 	it
is 	consistent 	with 	the 	basic 	labor 	law 	principles 	set 	forth 	in
EERA, 	which 	are 	designed 	to 	ensure 	effective 	and 	nondisruptive
organizational 	communications.
With 	respect 	to 	the 	regulations 	again 	at 	issue 	in 	this 	case,
the 	Board 	found 	unreasonable 	the 	District's 	regulation 	that
prohibited 	all 	Association 	business 	during 	duty 	hours 	of 	the
workday. 	The 	District 	equated 	duty 	time 	with 	workday, 	and 	its
regulation 	defined 	"workday" 	as 	extending 	from 	20 	minutes 	before
the 	first 	assigned 	period 	to 	20 	minutes 	after 	the 	last 	assigned
period, 	including 	class, 	conference 	and 	preparation 	periods.
The 	regulations 	excluded 	the 	duty-free 	nutrition 	and 	lunch
periods 	from 	the 	definition 	of 	duty 	time~ 	The 	Board 	cited
National 	Labor 	Relations 	Board 	(NLRB) 	cases 	in 	which 	the 	NLRB
had 	found 	denial 	of 	access 	outside 	working 	time 	in 	nonworking
areas 	to 	be 	unlawful. 	In 	the 	case 	before 	it, 	the 	Board 	found
that 	the 	20-minute 	periods 	before 	and 	after 	class 	did 	not
4

constitute
	work
	time
	since 	the 	record 	did
	not
	demonstrate
	that
those
	two
	periods
	were
	expressly, 	and/or
	uniformly,
	reserved 	for
preparation
	time.
	In
	fact,
	the
	Board 	found
	the 	record 	in
	that
case
	revealed
	that
	the
	majority 	of 	teachers
	do
	not
	work
	during
those
	time
	periods.
The
	second
	access
	regulation 	relevant 	to
	the
	present
	case
prohibited
	access
	to
	more
	than
	three
	employees
	on
	an
	informal
basis
	in
	lounges,
	workrooms,
	lunchrooms,
	or
	other 	areas
	where
employees
	gather,
	unless
	prior
	arrangements 	for 	the
	location
	had
been
	made
	at 	least
	24
	hours 	in 	advance.
	While
	the
	Board
	found
the 	24-hour
	notice 	aspect 	reasonable
	as
	to
	rooms
	not 	normally
used
	by
	nonworking 	employees,
	the
	cutoff
	at
	four
	or
	more
	employees
was
	unreasonable, 	since
	it
	set
	an
	artificial
	limitation
	that
	did
not
	support
	a
	conclusion
	that
	groups
	of
	four 	or
	more
	were
disruptive
	of
	school
	functions 	or 	the 	educational 	environment.
Background
	in 	This
	Case
The
	collective
	bargaining
	agreement 	between
	TALB
	and
	the
District, 	that
	was
	agreed
	upon
	in
	May
	1979,
	contains 	the
following 	relevant 	provisions:
ARTICLE
	IV
	- 	ASSOCIATION 	RIGHTS
A.
	Association
	Use
	of
	District 	Facilities:
e 	e 	. 	. 	. 	. 	. 	C 	. 	e 	e 	. 	. 	e 	.
2. 	During
	operation
	hours~
	the
	District
agrees
	upon
	24-hours 	advance
	request
	and
approval 	of 	the
	site
	manager
	to 	grant
the 	Association 	access 	to 	lounges,
faculty 	dining
	rooms
	or 	other 	designated
locations 	for 	the 	transaction 	of
Association 	business 	with 	employees 	on
non-duty 	time 	as 	p~ovided 	in 	Section
	C.
5

C.
	Association
	Business:	
The
	Associationagrees
	that
	its
	authorized
	staff
	and
building 	representatives
	shall
	not
conduct
	Association 	business
	with
employees
	during
	regular
	working
	hours.
It
	is
	agreed
	that
	non-duty 	times
	are 	as
follows: 	before
	and
	after
	the
	scheduled
workday
	of
	each
	employee,
	the
	nutrition
break,
	and
	lunch
	period.
	In
	no
	event
shall
	any
	representative
	or
	unit
	member
interrupt
	or
	interfere
	in
	any
	way
	with
normal 	work.
	Any
	exceptions
	must 	be
approved 	by
	the
	appropriate 	division
assistant
	superintendent.
	It
	is
	further
agreed
	that 	this
	section
	of 	the
	contract
shall
	be
	amended
	to
	conform
	to 	the
Public
	Employment
	Relations 	Board's
final
	decision
	on
	this 	matter.
ARTICLE 	V -
	DAYS
	AND
	HOURS 	OF 	EMPLOYMENT
A.
	Workday
1.	
It
	is
	agreed
	that
	the
	...
	duties
are
	normally 	expected
	to
	involve
	no
fewer
	than
	~ight
	(8)
	hours
	of
	total
effort
	each
	workday
	for 	both 	classroom
and
	non-classroom 	employees.
2.	
The
	regular
	school
	day
	for 	elementary
school
	teachers
	is
	as 	follows:
	In 	the
elementary 	schools 	teachers 	shall 	report
for 	duty 	not
	later
	than 	twenty
	(20)
minutes 	before 	the 	opening
	of
	class.
They
	shall
	remain 	twenty
	(20)
	minutes
after
	the 	close 	of
	their 	last
	assigned
period 	of 	the
	day
	(except
	on 	Wednesdays
or 	Fridays--as
	agreed
	upon 	by 	each 	school
faculty),
	unless
	excused
	earlier
	or
requested 	to
	remain 	by
	the
	principal.
	On
Wednesday
	or 	Fridays 	teachers
	may
	leave
the 	building
	immediately
	upon
	the 	close
of 	the 	regular 	school 	day 	for 	pupils,except 	that 	if 	district
	meetings 	are
scheduled
	on
	the 	early
	day, 	another 	day
may
	be
	designated.	
~	
..
6

3. 	Junior 	and 	senior 	high 	school
teachers 	shall 	report 	for 	duty 	at 	least
twenty 	(20) 	minutes 	before 	the 	opening
of 	the 	first 	assigned 	class, 	conference
period, 	or 	homeroom 	and 	shall 	check 	their
mailboxes 	daily 	before 	their 	first
assignments. 	Teachers 	remain 	at 	least
twenty 	(20) 	minutes 	after 	the 	close 	of
the 	last 	assigned 	class 	or 	conference
period, 	except 	on 	Wednesdays 	when 	they
may 	leave 	the 	building 	immediately 	upon
the 	close 	of 	the 	last 	assigned 	class 	or
conference 	period, 	unless 	assigned 	to 	an
after-school 	duty. 	If 	District 	meetings
are 	scheduled 	on 	Wednesdays, 	another 	day,
preferably 	Friday, 	may 	be 	designated 	as
the 	early 	leaving 	day.
8. 	The 	scheduled 	preparation 	period 	at
the 	secondary 	level 	is 	defined 	as 	paid
working 	time 	for 	the 	specific 	purposes
of 	preparing 	materials, 	conferring 	with
students, 	parents 	and 	administrators,
and 	other 	duties 	subject 	to 	assignment
by 	the 	principal~ 	~ 	..
9. 	In 	the 	elementary 	school, 	limited
preparation 	time 	may 	be 	arranged 	at
individual 	school 	sites 	through 	staffing
patterns 	that 	a) 	are 	educationally
justifiable; 	b) 	do 	not 	reduce 	the 	total
instruction 	time 	for 	students; 	c) 	are
developed 	jointly by 	the 	teaching 	staff
and 	the 	site 	manager, 	and 	d) 	are 	approved
by 	the 	Assistant 	Superintendent,
Elementary 	Division.
Following 	issuance 	of 	PERB 	Decision 	No. 	130, 	supra, 	TALB
requested 	that 	the 	District 	meet 	to 	revise 	the 	contract 	pursuant
to 	the 	language 	in 	Article 	IV, 	section 	C. 	Prior 	to 	such 	meeting,
the 	District 	revised 	its 	regulations, 	purportedly 	to 	comply 	with
Decision 	No. 	130. 	One 	month 	later, 	in 	October 	1980, 	TALB 	wrote
to 	PERE 	Los 	Angeles 	Regional 	Director 	Fran 	Kreiling, 	seeking 	an
7

investigation 	into 	the 	District 1 s 	compliance 	with 	that 	decision
and 	complaining 	generally 	that 	the 	District's 	revised 	regulations
still 	did 	not 	comport 	with 	the 	Board's 	decision. 	After
additional 	correspondence 	between 	TALB'and 	Ms. 	Kreiling, 	she
determined 	that, 	since 	TALB 	was 	not 	a 	party 	to 	the 	decision, 	it
had 	no 	standing 	to 	seek 	compliance. 	TALB 	did 	not 	appeal 	that
determination 	but, 	instead, 	commenced 	this 	action 	in 	March 	1981,
claiming 	that 	certain 	of 	the 	District's 	regulations 	violate 	EERA
by 	unreasonably 	denying 	it 	access 	to 	the 	bargaining 	unit 	members.
Although 	the 	parties 	met 	in 	November 	to 	discuss 	the 	revised
regulations, 	the 	only 	outcome 	of 	that 	meeting 	was 	that 	they 	did
not 	agree 	on 	whether 	the 	revised 	regulations 	complied 	with 	PERB
Decision 	No. 	130@ 	There 	is 	no 	evidence 	in 	the 	record 	that 	TALB
made 	any 	further 	effort 	to 	negotiate 	a 	change 	in 	the 	contract~
Indeed, 	it 	appears 	the 	issue 	was 	dropped 	as 	TALB 	pursued 	relief
with 	PERB.3
In 	its 	charge, 	the 	Association 	alleged 	that 	the 	District
violated 	EERA 	by 	denying 	it 	access 	during 	the 	workday, 	as 	more
fully 	described 	in 	its 	letter 	to 	Kreiling, 	which 	was 	incorporated
by 	reference. 	Specifically, 	it 	challenged 	the 	ban 	on 	access
during 	the 	20 	minutes 	before 	and 	after 	school, 	with 	respect 	to
teachers 	who 	are 	not 	assigned 	work 	and 	are 	in 	nonworking 	areas.
TALB 	cites 	Regulations 	I.As 	(definition 	of 	Association 	business),
3Although 	the 	dissent 	states 	that 	the 	District 	"refused"
to 	negotiate, 	TALB 	did 	not 	prove 	that 	that 	is 	what 	occurred.
8

II.A. 	(conduct 	of 	Association 	business 	outside 	duty 	hours 	and
away 	from 	students 	and 	other 	nonemployees), 	and 	III.A.l. 	(list 	of
prohibited 	activities) 	in 	support 	of 	such 	allegation. 	The 	second
challenge 	raised 	by 	TALB 	in 	its 	charge 	concerned 	Regulation 	III.H.,
which 	provides 	that 	off-duty 	employees 	may 	distribute 	materials
to 	mailboxes 	or 	directly 	to 	other 	off-duty 	employees 	on 	nonduty
4	time.
The 	District 	filed 	a 	Motion 	to 	Particularize, 	claiming 	that
the 	above 	charge 	was 	not 	sufficiently 	specific. 	In 	its 	response,
TALE 	cites 	two 	ways 	in 	which 	it 	claims 	its 	organizational 	right
of 	access 	was 	unreasonably 	interfered 	with: 	(1) 	the 	limitation
on 	the 	times 	for 	conducting 	Association 	business 	to 	outside 	"duty
5	hours" 	(Regulation 	II.A., 	B. 	) 	and, 	therefore, 	including 	as
4There 	is 	no 	further 	reference 	in 	the 	record 	or 	briefs 	to
this 	allegation, 	nor 	was 	it 	addressed 	by 	the 	ALJ. 	We 	therefore
conclude 	that 	TALB 	has 	dropped 	this 	issue.
5Regulation 	II.A., 	B. 	states, 	in 	relevant 	part:
A. 	Employee 	Association 	Business--All
activ1t1es 	concerning 	association 	business,
as 	defined, 	shall 	be 	conducted 	outside 	duty
hours 	of 	the 	workday 	for 	the 	individuals
involved. 	All 	association 	business 	when 	on
district 	property 	shall 	be 	conducted 	in
non-work 	areas 	during 	non-work 	periods 	away
from 	students 	and 	other 	non-employees.
(Example: 	No 	association 	business 	shall 	be
conducted 	during 	such 	events 	as 	PTA 	or
Advisory 	Council 	meetings~ 	Open 	House, 	etc.,
or 	in 	the 	presence 	of 	VIPS 	or 	other
non-employees.)
B. 	Personal 	Business--Conferences 	on 	the
personal 	employment 	problems 	of 	an 	employee
9

working 	hours 	and 	excluding 	as 	access 	time 	the 	20-minute 	periods
before 	and 	after 	school 	and 	the 	daily 	conference 	or 	preparation
periods; 	and 	(2) 	the 	limitation 	on 	access 	by 	specifying 	locations
where 	association 	representatives 	may 	meet 	with 	employees
(Regulation 	v.c.1. 6 ), 	and 	by 	requiring 	24-hours 	advance 	notice
for 	room 	arrangements 	"[w]hen 	it 	is 	anticipated 	that 	Association
business 	is 	to 	be 	conducted 	informally 	or 	formally 	with 	a 	large
7group 	of 	employees 	.. 	~ 	" 	(Regulation 	V.C.2. 	).
shall 	be 	conducted 	outside 	duty 	hours 	of 	the
workday 	for 	the 	individuals 	involved.
The 	term 	"personal 	business" 	is 	defined 	as:
... 	any 	activity 	initiated 	by 	an
individual 	employee 	who 	has 	the 	need 	to
consult 	with 	an 	Association 	representative
because 	of 	some 	personal 	employment 	matter
such 	as 	the 	processing 	of 	a 	grievance.
6Regulation 	V.C.l. 	states 	in 	relevant 	part:
C.l. 	Association 	or 	Personal 	Business 	with
Individual 	Employees--An 	association
representative 	who 	1& not 	employed 	at 	the
site 	may 	meet 	privately 	with 	small 	groups 	of
employees 	during 	non-duty 	hours 	in 	a 	lounge,
workroom, 	lunchroom 	or 	other 	similar 	area 	so
long 	as 	the 	conversation 	will 	not 	seriously
disrupt 	or 	interfere 	with 	the 	use 	of 	the 	area
by 	others. 	The 	specific 	lounge 	or 	ot11er 	area
may 	be 	specified 	by 	the 	site 	manager 	or
supervisor.
7Regulation 	V.C.2. 	states, 	in 	relevant 	part:
C.2. 	Association 	Business 	with 	Groups 	of
Employees--vJhen 	it 	is 	anticipated 	that
Association 	business 	is 	to 	be 	conducted
informally 	or 	formally 	with 	a 	large 	group 	of
employees 	relative 	to 	the 	size 	of 	the 	room,
room 	arrangements 	must 	be 	made 	at 	least 	one
10

DISCUSSION
Timeliness
The
	ALJ
	concluded 	as
	a
	preliminary 	matter
	that,
	contrary 	to
one
	of
	the
	District
1 s
	defenses,
	the
	allegations
	concerning
regulations 	raised
	by
	the 	Association 	for 	the
	first
	time
	in
	its
response
	to
	the
	District's
	Motion
	to
	Particularize
	(and
	seven
months
	after
	the
	District
	revised
	its
	regulations)
	were
	not
time-barred.
	The
	District
	excepts 	to
	this
	conclusion.
	For 	the
reasons
	which
	follow,
	we
	agree 	with 	the
	ALJ
	that
	the 	challenge
to 	those
	regulations
	is
	not
	barred
	by
	the
	six-month
	limitation
8
period
	set
	out 	in
	section 	3541.5(a).
We
	find
	that
	the
	Association's 	allegations
	of 	unreasonable
denial
	of 	access
	assert
	a
	violation
	of
	a
	continuing
	nature. 	If
the
	regulations 	violate
	the
	Act 	by
	unreasonably
	denying
	access,
day
	in
	advance
	of 	the 	meeting.
	The
	request
for 	access
	must 	be
	made
	to 	the
	site
	manager
or 	supervisor
	and
	shall
	include 	the
	specificdate,
	time,
	and
	size
	of 	the
	facility
requested.
	The
	principal 	or
	office
	head
	will
evaluate
	their
	request
	and
	normally,
authorize 	the
	use
	of 	the
	facilities
	while
mindful 	of 	the
	district's
	need
	to
	balance
fairly
	the
	rights
	of
	all
	employees,
	of 	other
associations,
	and
	of 	the
	district 	itself.
Failure 	to
	make
	arrangements 	in
	advance
	shall
be 	grounds 	for 	prohibiting
	any 	such 	meetings
at
	the
	site.
	(Emphasis
	in
	original.)
8section 	3541.S(a) 	provides, 	in 	pertinent 	part:
.
	the 	board
	shall
	not
	do
	either
	of 	the
following: 	(1)
	issue
	a
	complaint 	in 	respect
of 	any 	charge 	based 	upon 	an
	alleged 	unfair
practice 	occurring
	more 	than 	six
	months
prior 	to 	the 	filing 	of 	the 	charge
	....
11

then
	the 	date
	on
	which
	they
	were
	revised
	is
	immaterial.
	Indeed,
if
	the
	regulations
	complained
	of
	had
	not
	been
	revised
	in
September
	1980,
	then 	under
	the
	District's
	argument
	we
	would
	have
to
	look
	at 	their
	enactment
	date
	to
	decide
	if
	the
	allegations
	are
timely.
	Obviously,
	that
	date
	has
	no
	legal 	significance 	in
deciding
	whether
	the
	regulations
	violate
	the 	Act. 	Likewise, 	the
date
	on 	which
	the
	revisions
	occurred
	does
	not 	impact, 	nor
trigger,
	the
	six-month
	period, 	since
	it
	is
	not 	the
	act
	of
revising
	the
	regulations
	of
	which
	TALB
	complains
	but,
	rather,
their
	existence,
	which
	continued
	up
	to
	and
	through 	the 	time
	of
the
	hearing.
In 	reaching
	this
	conclusion,
	we
	find
	it
	unnecessary
	to
	adopt
the 	ALJ's
	statement
	that
	each
	act
	of
	enforcement
	constitutes
	a
new
	and
	separate
	cause
	of
	action.
	While
	this
	may
	be
	true,
	the
Association
	need
	not 	demonstrate
	an
	attempt 	to
	violate 	the
regulation
	in
	order 	to
	show
	that
	the
	District
	would
	enforce
	it.
Further~ 	in 	deciding
	that
	the
	allegations 	asserted
	in 	the
Association's
	response
	are
	not 	time-barred,
	we
	find 	merit 	in
	the
Association's
	argument
	that
	its
	original
	charge 	challenged 	the
access 	regulations 	generally,
	while 	the 	response
	was 	a
clarification
	of 	the
	specific 	regulations 	challenged.
	Were
	this
not
	so, 	then 	the
	District's
	Motion
	to 	Particularize
	would 	have
been 	unnecessary
	and
	the 	issue
	would
	not 	have
	arisen.
	The
District 	asserted, 	as 	the 	grounds 	for
	its
	Motion,
	that 	the
charge
	was
	unspecific
	and 	overbroad 	by
	failing 	to 	give
	it
	notice
of 	the 	precise 	provisions 	of 	Respondent's 	access 	regulations
12

which 	were 	alleged 	to 	constitute 	unfair 	labor 	practices. 	Its
argument 	now, 	that 	the 	regulations 	asserted 	for 	the 	first 	time
in 	the 	Association's 	response 	were 	not 	included 	in 	the 	original
charge, 	is 	inconsistent 	with 	the 	position 	it 	took 	in 	its 	Motion
9and 	is, 	therefore, 	rejected.
Scope 	of 	Charge
The 	next 	preliminary 	issue 	we 	address 	concerns 	the 	ALJ's
conclusion 	that 	the 	District's 	regulation 	requiring 	the
Association 	to 	conduct 	its 	business 	away 	from 	students 	and
nonemployees 	was 	unreasonable. 	The 	District 	argues 	that 	this
issue 	was 	not 	raised, 	nor 	addressed, 	by 	Charging 	Party 	and, 	thus,
was 	not 	before 	the 	ALJ. 	We 	disagree. 	vlhile 	it 	is 	true 	that 	the
charge 	and 	the 	response 	to 	the 	Motion 	do 	not 	precisely 	address
this 	aspect 	of 	the 	regulations; 	at 	the 	hearing 	a 	question 	arose
concerning 	the 	exact 	parameters 	of 	the 	Association's 	charge.
The 	following 	excerpt 	from 	the 	transcript 	demonstrates 	that 	the
District 	was 	placed 	on 	notice 	of 	the 	extent 	of 	the 	regulations
challenged:
HEARING 	OFFICER: 	... 	the 	charge 	that 	we
are 	concerning 	ourselves 	with 	now 	is
everything 	that's 	in 	the 	original 	charge 	as
incorporated, 	as 	incorporating 	the 	letter
that 	we 	have 	in 	evidence 	as 	Charging 	Party's
Exhibit 	No. 	1 	[the 	letter 	to 	Fran 	Kreiling
attached 	to 	the 	original 	charge], 	and 	the
particularization 	of 	the 	charge, 	which 	refers
9Having 	concluded 	that 	Charging 	Party 	has 	alleged 	a
violation 	of 	a 	continuing 	nature, 	we 	need 	not 	address, 	nor 	do 	we
adopt, 	the 	ALJ's 	remaining 	rationale 	for 	finding 	the 	charge
timely.
13

to 	those 	sections 	of 	the 	regulations 	that 	you
enumerated 	during 	your 	presentation 	of 	your
objections ....
CAUSEY 	[District's 	attorney]: 	Okay, 	as 	I
understand 	your 	ruling 	then, 	you're 	saying
that 	all 	sections 	of 	the 	regulations 	that
are 	referred 	to 	in 	the 	letter 	which 	is 	CP
No. 	1, · as 	well 	as 	the 	sections 	that 	a re
contained 	in 	the 	response 	to 	particularize,
are 	the 	items 	that 	are 	at 	issue 	today.
HEARING 	OFFICER: 	That's 	correct.
(Transcript, 	pp. 	14-15, 	emphasis 	added.)
The 	language 	concerning 	conduct 	of 	association 	business 	when 	on
District 	property 	away 	from 	students 	and 	other 	nonemployees 	is
found 	in 	section 	II.A. 	of 	the 	regulations 	and, 	therefore, 	·is
referred 	to 	in 	both 	the 	original 	charge 	and 	the 	response.
Further, 	Charging 	Party 	addressed 	the 	issue 	for 	approximately
five 	pages 	of 	its 	closing 	brief, 	and 	the 	District, 	in 	its 	reply
brief, 	did 	not 	protest 	that 	this 	was 	not 	at 	issue. 	Indeed, 	the
Dis~rict 	did 	not 	respond 	to 	this 	portion, 	although 	it 	responded
extensively 	to 	the 	remainder 	of 	TALB's 	brief. 	Given 	this
interchange 	at 	the 	hearing 	that 	should 	have 	alerted 	the 	District
to 	the 	scope 	of 	the 	charge 	and 	the 	references 	in 	TALB's 	brief,
and 	for 	the 	reasons 	expressed 	by 	the 	ALJ, 	we 	conclude 	that 	the
10ALJ 	properly 	addressed 	this 	aspect 	of 	the 	regulations.
Waiver 	by 	Contract
The 	next 	preliminary 	issue 	we 	address, 	before 	proceeding 	to
the 	merits 	of 	the 	Association's 	charge, 	is 	the 	question 	of
1Osee 	the 	discussion 	following 	on 	the 	merits 	of 	this
allegation.
14

whether 	the 	Association 	waived 	its 	right 	to 	object 	to 	the
regulations, 	given 	the 	language 	in 	the 	collective 	bargaining
agreement. 	The 	District 	asserts 	that 	the 	contract 	demonstrates
a 	waiver, 	and 	the 	only 	inquiry 	before 	the 	Board 	is 	whether 	the
regulations 	are 	consistent 	with 	the 	contract. 	The 	Association
merely 	asserts 	that 	access 	rights 	cannot 	be 	waived 	by 	a
negotiated 	agreement, 	citing 	Richmond 	Unified 	School
District/Simi 	Valley 	Unified 	School 	District 	(1979) 	PERB
Decision 	No. 	99 	and 	NLRB 	v. 	Magnavox 	Company 	(1974) 	415 	U.S. 	322.
The 	ALJ 	correctly 	noted 	that 	United 	Technologies 	Corporation 	(2d
Cir. 	1983) 	706 	F.2d 	1254 	[113 	LRRM 	2320], 	which 	is 	subsequent 	to
Magnavox, 	is 	more 	on 	point 	with 	the 	facts 	of 	this 	case. 	In
United 	Technologies, 	the 	court 	was 	asked 	to 	consider 	the
continued 	viability 	of 	its 	holding 	in 	United 	Aircraft 	Corporation
v. 	NLRB 	(2d 	Cir. 	1971) 	440 	F.2d 	85 	[76 	LRRM 	2761], 	in 	light 	of
the 	U.S. 	Supreme 	Court's 	decision 	in 	Magnavox. 	United 	Aircraft
held 	that 	the 	collective 	bargaining 	agreement 	between 	the 	employer
and 	the 	union 	authorized 	the 	employer's 	limited 	no-distribution
rule, 	which 	prohibited 	union 	solicitation 	during 	"working 	time,"
which 	the 	parties 	understood 	to 	be 	"paid 	work 	time." 	"Paid 	work
time" 	included 	employee 	breaks 	but 	excluded 	lunch 	time. 	In
United 	Technologies, 	the 	court 	explained 	that 	United 	Aircraft 	was
still 	viable 	and 	held 	that 	the 	limitation 	on 	such 	activity 	during
paid 	breaks
... 	neither 	deprived 	employees 	of 	rights
that 	were 	fundamental 	under 	Section 	7 	of 	the
Act, 	nor 	implicated 	public 	policy 	concerns
15

that
	were
	overriding,
	because
	the
	employees
remained
	"free 	to
	solicit
	on 	company
	property
before
	and
	after
	work
	and
	during 	the 	lunch
hour
....
"
	In
	light
	of
	that
	freedom,
	we
concluded
	that
	it
	was
	permissible
	for 	the
union
	to
	agree
	to 	the
	limited
	no-solicitation
provision
	in 	the
	collective
	bargaining
agreement:
·
We
	see
	no
	reason
	to
	invalidate
	the
	clear
agreement
	of 	the
	parties
	....
	[T]here
are
	25,000 	employees 	and
	over
	50
	stewards
in
	the
	plants
	involved.
	The.
	company
probably 	considered 	the
	no-solicitation
ban
	to
	be 	an
	important
	bargaining
objective,
	and
	the
	agreement
	should 	not
be
	lightly
	overturned
....
	We
therefore
	conclude
	that
	the
	Board
properly
	found
	that
	the
	company
	Rule
	5
and
	the
	contract
	can 	be
	applied 	to
prohibit
	solicitation
	for 	the
	union
during
	working
	hours,
	whether 	or 	not
	the
employee
	is
	working
	or
	resting.
	United
Technologies 	Corp., 	supra,
	[113
	LRRM,
	at
p.
	2329].
The
	court's 	test
	for 	determining
	whether
	the
	union 	could 	waive
solicitation
	rights
	turned
	on
	whether
	the
	rule 	constituted
	a
broad
	ban
	on
	solicitation
	or
	distribution
	anywhere
	in 	the
	plant,
as
	was
	the 	case 	in
	Magnavox.
	If
	it
	did 	not, 	but
	was
	instead
	a
limited 	no-solicitation 	rule
	and
	contract 	provision,
	then
	it
	did
not
	seriously 	dilute
	employees.
	section
	7
	rights.
	The
	court
concluded 	in 	United 	Technologies
	that
	its
	position
	in 	United
Aircraft
	was
	consistent
	with 	the
	Supreme
	Court's 	decision 	in
Magnavox,
	as
	that
	case
	dealt
	with
	a
	negotiated 	rule 	that
	banned
solicitation 	altogether.
	Indeed, 	the 	court
	framed
	the 	issue 	in
Magnavox
	as
	specifically 	addressing 	the 	issue 	of
	a
	negotiated
rule 	that
	would 	have 	waived 	employees'
	rights
	even 	to
	solicit
	on
behalf 	of
	a
	rival 	union.
16

We
	agree
	with
	the
	court's
	rationale
	in
	United
	Technologies
that
	a
	union
	may
	agree
	to
	collective
	bargaining 	provisions
	that
limit
	employees'
	rights
	to
	engage
	in
	union
	activities
	and
	limit
the
	union's
	right
	to
	have
	access
	to
	those
	employees, 	so
	long 	as
such
	agreement
	does
	not
	seriously
	impinge
	on
	the
	rights
	provided
by
	EERA.
	The
	Board
	has
	previously 	held
	that
	access
	rules 	are
negotiable
	(see
	Davis
	Joint
	Unified
	School
	District
	(1984)
	PERB
Decision
	No.
	474)
	and,
	once
	the
	parties
	have
	negotiated 	those
rules,
	the
	parties
	cannot
	assert 	that
	they 	are
	not
	bound
	by
	the
contract
	terms. 	Therefore,
	to
	the
	extent
	the
	regulations
complained
	of 	are
	covered
	by
	the
	contract
	and
	do
	not
	seriously
impinge
	on
	the 	access
	rights
	granted
	by
	statute,
	the
	contract
prevails
	and
	the
	union
	will
	be 	found
	to
	have 	waived
	its
	right
	to
object 	to 	those
	regulations:
Specific
	Regulations 	Challenged
The
	Association 	challenges 	the 	following
	aspects 	of 	the
District's
	regulations:
1.	
The
	rule 	that 	prohibits
	access 	during 	the 	conference
	and
20-minute
	preparation 	periods
	and
	requires 	Association
business 	to
	be 	conducted
	away 	from
	students
	and
nonemployees.
2.	
The
	rule 	that 	requires
	24-hour
	notice 	to 	schedule
meetings.
3.	
The
	rule 	that
	allows 	the
	site
	administrator 	to 	designate
the
	specific
	room
	to
	be 	used
	for 	Association 	meetings.
24-Hour 	Notice 	and
	Designation 	of 	Meeting
	Sites
As
	to 	the 	24-hour 	notice 	provision
	and 	the 	designation 	of
rooms
	for 	Association 	meetings,
	we
	agree 	with 	and 	adopt 	the
17

ALJ's
	conclusions
	and
	rationale
	on
	these 	issues
	and,
	therefore,
dismiss
	~narging
	Party's 	allegations 	related
	to 	these
	two
	issues.
Access 	During
	the
	20-Minute
	Periods
	and
Conference/Preparation
	Periods
On
	the
	subject
	of 	access 	during 	the 	conference
	periods
	and
the
	20-minute
	periods 	before
	and
	after
	school,
	we
	affirm
	in
	part
and
	reverse
	in
	part.
	As
	to 	the 	conference
	period,
	we
	agree
	that
the
	collective
	bargaining
	agreement
	specifically
	provides
	that
this
	period 	of
	time
	is
	"work
	time" 	and,
	therefore,
	presumptively
unavailable 	for 	Association 	access.
	Long
	Beach,
	supra,
	PERE
Decision
	No.
	130;· Republic
	Aviation
	Corp.
	v.
	NLRB
	(1945} 	324
U.S.
	793
	[16
	LRRM
	620];
	Essex
	International,
	Inc.
	(1974}
	211
NLRB
	749
	[86
	LR.FM
	1411].
	Further, 	in
	addition 	to
	the
presumption 	of
	no
	access,
	the
	contract
	specifically 	states 	that
the 	Association 	will
	not
	have
	access 	during
	work
	time 	and,
	thus,
the
	Association
	agreed
	to
	embody
	this
	presumption
	into 	the
contract.
	Clearly 	then, 	the 	Association
	has
	waived 	any
	objection
it
	might 	have 	had
	to 	the
	District's
	regulation.
On
	the 	issue 	of 	access 	during 	the
	20-minute
	periods,
	we
reverse
	the 	ALJ's
	conclusion
	that 	denial 	of
	acces~ 	during 	these
periods 	is
	unreasonable, 	as 	well 	as 	her 	conclusion
	that 	the
contract
	does 	not
	constitute
	a
	waiver 	of 	access 	during 	these
time
	periods.
	The
	underlying 	question
	is
	whether 	these 	periods
are
	"work
	time" 	so 	as 	to 	create
	a
	presumption
	that 	denial 	of
access 	is 	reasonable.
	We
	conclude
	that,
	by 	both 	the 	intent 	of
the 	parties
	and 	by
	virtue 	of 	the 	collective 	bargaining 	language,
18

these 	periods
	are 	paid
	preparation 	periods
	and,
	thus,
	constitute
"work
	time."
The
	collective
	bargaining
	agreement
	states,
	in
	part:
The
	Association 	agrees
	that
	its
	authorized
staff
	and
	building 	representatives 	shall
	not
conduct
	Association 	business
	with
	employees
during
	regular
	working
	hours.
	It
	is
	agreed
that
	non-duty 	times
	are
	as
	follows: 	before
and
	after
	the
	scheduled
	workday
	of
	eachemployee,
	the 	nutr1t1on 	break,
	and
	lunch
period
....
	It
	is
	further
	agreed
	that
this
	section
	shall
	be
	amended
	to
	conform
	to
the 	Public
	Employment
	Relations 	Board's
final
	decision
	on
	this
	matter.
	(Emphasis
added.)
The
	ALJ
	concluded
	that
	the
	language
	of
	this
	section 	contains
an
	ambiguity, 	since
	it
	does
	not
	specifically
	use
	the
	term
	"work
time"
	but, 	rather, 	refers
	to 	"regular
	working
	hours,"
	"non-duty
times"
	and
	"scheduled
	workday." 	Consequently,
	she
	found
	that
the
	contract
	does
	not
	specifically 	prohibit
	access 	during 	the
20-minute
	periods
	and,
	therefore,
	no
	waiver
	by
	the 	Association
was
	demonstrated.
	We
	disagree.
Reading
	section
	C
of
	Article
	IV,
	together
	with
	section
	A
of
Article
	V,
	which
	defines 	the
	workday
	as
	starting
	20
	minutes
before 	the 	opening
	of 	class
	and
	extending 	to
	20
	minutes
	after
	the
last
	assigned 	class
	(except
	on
	the
	early-leaving 	day),
	we
	find
that
	the
	parties
	used 	"working 	hours" 	in
	section
	C
to
	mean 	"work
time."
	This 	becomes
	clear
	in 	the 	next 	sentence 	of 	section
	C,
when
	the 	parties 	define 	"non-duty 	time" 	as 	before
	and
	after
	the
scheduled 	workday,
	the 	nutrition
	break 	and 	lunch 	period.
	These
are 	clearly 	the 	times 	that 	are 	available 	for 	access. 	Turning
19

then 	to 	what 	constitutes 	the 	scheduled 	workday, 	section 	A 	of
Article 	V makes 	clear 	that 	the 	scheduled 	workday 	for 	teachers
commences 	20 	minutes 	before 	the 	first 	class 	or 	conference 	period
and 	ends 	20 	minutes 	after 	the 	last 	class 	or 	conference 	period.
Thus, 	the 	parties 	have 	agreed 	by 	contract 	that 	the 	20-minute
periods 	are 	part 	of 	the 	working 	hours, 	and 	have 	further 	agreed
that 	there 	will 	be 	no 	Association 	access 	during 	that 	time.
Since 	the 	parties 	have 	defined 	what 'is, 	in 	essence, 	"work
time" 	to 	include 	the 	20-rninute 	periods, 	under 	previously
articulated 	PERB 	presumptions, 	there 	is 	no 	presumptive 	right 	of
access 	during 	this 	time. 	In 	so 	holding, 	we 	would 	characterize
this 	time 	as 	paid 	preparation 	time, 	notwithstanding 	the 	testimony
from 	numerous 	teachers 	that 	they, 	in 	fact, 	do 	their 	preparation
at 	other 	times 	in 	order 	to 	be 	able 	to 	relax 	and 	socialize 	during
these 	periods. 	That 	the 	District 	allows 	this 	is 	merely 	a
reflection 	of 	the 	professional 	nature 	of 	teaching 	and 	does 	not
transform 	this 	time 	into 	nonwork 	time.
This 	viewpoint 	of 	the 	nature 	of 	teaching 	is 	borne 	out
repeatedly 	in 	the 	transcript 	by 	the 	testimony 	of 	the 	teachers
called 	by 	both 	parties. 	All 	of 	the 	teachers, 	even 	those 	who
testified 	they 	relax 	or 	"mentally 	prepare 	or 	unwind" 	during 	the
20-minute 	periods, 	testified 	that 	it 	was 	necessary 	for 	them 	to
arrive 	early 	and/or 	work 	at 	home 	in 	the 	evenings 	in 	order 	to
accomplish 	the 	necessary 	preparation: 	In 	other 	words, 	to 	the
extent 	the 	teachers 	chose 	to 	use 	the 	20-rninute 	periods 	for 	other
than 	actual 	preparation, 	they 	voluntarily 	extended 	their 	workday
20

to
	compensate
	for
	that
	choice.
	It
	is
	obvious
	the
	District
	has
recognized
	this
	professional
	nature
	of 	teaching
	by
	not
	imposing
rigid
	requirements
	and
	job
	tasks
	on
	teachers
	during
	these
preparation 	periods.
	Nevertheless,
	teachers~
	required
	to
report
	for 	duty
	and
	remain
	on
	duty
	20
	minutes
	before
	and
	after
scheduled
	classes.
	The
	reason
	for
	this
	requirement
	is
	not 	only
to 	provide 	paid
	preparation
	time
	but
	also
	to 	assure
	accessibility
to 	the 	teachers
	by
	students, 	parents
	and
	the
	administration.
	The
very
	nature 	of
	that 	accessibility
	indicates
	this 	is
	not
	duty-free
time,
	even 	though
	some
	teachers
	choose
	not
	to
	do
	their
	preparation
during 	these
	periods.
	Allowing
	the
	Association 	to
	conduct
	its
meetings 	during
	this
	time
	would
	defeat 	the
	purpose
	of
	accessibility
and
	the
	informal
	supervision 	required
	by
	the
	District.
This
	is
	not
	unlike 	the
	situation
	in
	El 	Dorado 	Union
	High
School
	District
	(1985)
	PERB
	Decision
	No.
	537,
	in
	which
	the
contract
	required 	the 	teachers 	to 	report 	for 	duty
	one-half
	hour
before 	classes
	were
	to
	start.
	The
	Board 	found
	that 	picketing 	in
front 	of
	the 	school 	during
	that
	time
	period
	was
	an
	unlawful
partial
	work
	stoppage,
	even 	though
	the 	teachers 	continued
	to
perform
	their 	preclass 	responsibilities.
	Of
	relevance 	to
	this
case
	is
	the 	Board's
	rationale
	for 	finding 	that
	such 	conduct
constituted
	a
	partial
	work
	stoppage:
The
	evidence
	shows
	that
	although
	Districtpolicy 	permitted 	teachers 	to
	choose 	where
	in
the 	school 	they 	spent 	the 	30-rninute 	periods'-;
there
	was 	a
	paging 	system 	for 	contacting
them 	when
	needed, 	and
	there
	was 	a
	telephone
in 	the 	teachers' 	lounge. 	[Footnote 	deleted.]
Thus, 	the 	District 	could 	readily
	meet
	its
21

obligations 	to 	student 	and 	parent 	needs. 	It
would 	not 	be 	reasonable 	to 	impose 	on 	the
district 	the 	obligation 	to 	search 	out
teachers 	who 	claim 	they 	are 	available 	for
duties 	that 	arise, 	but 	who 	are 	actually 	away
from 	the 	school 	site 	itself. 	El 	Dorado,
supra, 	at 	p. 	4.
Similarly, 	in 	the 	present 	case, 	allowing 	the 	Association 	to
conduct 	its 	meetings 	during 	this 	time 	period 	would 	make 	the
teachers 	unavailable 	for 	those 	numerous 	spontaneous 	instances
when 	school 	personnel 	need 	to 	contact 	them.
In 	reaching 	this 	conclusion, 	we 	overrule 	the 	standard
previously 	articulated 	by 	this 	Board 	in 	PERE 	Decision 	No. 	130,
p. 	9, 	in 	which 	the 	Board 	rejected 	the 	district's 	argument 	that
these 	periods 	are 	paid 	preparation 	periods 	since, 	according 	to
the 	Board, 	they 	are 	not 	"expressly 	and/or 	uniformly 	reserved 	for
preparation 	time." 11 The 	fact 	that 	teachers 	exercise 	a
certain 	amount 	of 	discretion 	in 	use 	of 	their 	time 	does 	not
transform 	duty 	time, 	in 	this 	case, 	paid 	preparation 	time, 	into
nonwork 	time. 	Further, 	this 	standard 	is 	not 	consistent 	with
NLRB 	case 	law 	or 	other 	PERB 	precedent.
This 	Board 	has 	long 	recognized 	that 	preparation 	time 	provided
in 	a 	daily 	work 	schedule 	constitutes 	a 	part 	of 	the 	teacher's
workload. 	Other 	than 	the 	Long 	Beach, 	supra, 	decision, 	the 	Board
llwere 	we 	to 	continue 	to 	adhere 	to 	the 	standard 	set 	out 	in
PERB 	Decision 	No. 	130, 	we 	might 	well 	reach 	a 	different 	result,
in 	light 	of 	the 	language 	of 	Article 	IV, 	section 	C, 	which 	states
that 	the 	section 	"shall 	be 	amended 	to 	conform 	to 	the 	Public
Employment 	Relations 	Board's 	final 	decision 	on 	this 	matter."
Instead, 	we 	view 	the 	pertinent 	contract 	language 	in 	light 	of 	the
standard 	adopted 	herein.
22

has
	never
	required
	a
	showing
	that
	preparation 	periods
	be
expressly
	and/or
	uniformly
	reserved 	for
	preparation
	time
	in
order 	to 	categorize
	such 	time
	periods
	as
	part
	of
	the
	work
responsibility
	of 	the
	teacher.
12	
Previous
	decisions
	make
	clear
that,
	even
	where
	use
	of
	such 	time
	is
	at
	the
	discretion
	of 	the
teacher,
	and
	some
	teachers
	use
	some
	portion
	of
	the 	period 	to
rest
	or 	relax,
	the
	employer
	unlawfully
	changes
	the
	teachers'
workload
	by
	unilaterally
	decreasing 	or 	eliminating
	the
preparation 	period.
	None
	of 	these 	decisions
	refer
	to
	any
requirement
	that
	such
	periods
	be
	expressly 	and/or 	uniformly
reserved 	for
	preparation
	time
	in 	order 	to 	find
	that
	such
decrease 	in
	allotted
	time
	results
	in
	an
	increase
	in
	personal
13	
time
	devoted
	to
	work
	activities.
The
	Board's
	most
	recent 	decision 	involving
	preparation
	time
is
	Victor
	Valley
	Union 	High
	School
	District,
	supra, 	in
	which
	the
Board
	adopted 	the
	ALJ's
	findings 	of
	facts
	in
	pertinent
	part.
12see
	Jefferson
	School
	District
	(1980)
	PERB
	Decision
No.
	133,
	p.
	37;
	Moreno
	Valley
	Un1f1ed 	School
	District
	(1982)
PERB
	Decision
	No.
	206;
	Modesto
	city
	Schools
	(1983)
	PERB
	Decision
No.
	291;
	Grossrnont 	Union 	High 	School
	D1str1ct
	(1983)
	PERB
Decision
	No.
	313; 	Healdsburg
	Union 	High 	School
	District
	and
Healdsburg
	Union
	School
	District/San
	Mateo 	School
	District
(1984)
	PERB
	Decision
	No.
	375; 	Corning
	Union 	High 	School
	District
(1984)
	PERB
	Decision
	No.
	399;
	Victor 	Valley
	Union 	High
	School
District
	(1986)
	PERB
	Decision
	No.
	565.
13Modesto,
	PERB
	Decision
	No.
	291,
	supra,
	found
	that 	the
association 	failed 	to
	meet
	its
	burden 	of 	proof 	because
	it
	did
not
	show
	that 	the
	district's 	alteration
	in 	preparation 	time, 	in
fact, 	extended 	the 	workday. 	Subsequent 	decisions
	have 	not
	-
expressly 	required 	such 	actual 	proof 	of 	increase 	in 	the 	workday
in 	order 	to 	find
	a
	unilateral 	decrease 	in 	preparation 	time 	to
	be
unlawful.
23

In 	that 	case, 	the 	Faculty 	Handbook 	required 	teachers 	to 	be 	"on
duty" 	15 	minutes 	before 	and 	10 	minutes 	after 	scheduled 	classes.
The 	ALJ 	states, 	at 	pp. 	5 	and 	6 	of 	his 	decision:
Presumably, 	the 	15 	minutes 	before 	the 	first
class, 	and 	the 	10 	minutes 	after 	the 	last
class 	was 	time 	in 	which 	a 	teacher 	could
prepare 	lessons, 	grade 	papers, 	talk 	to
students 	or 	parents 	- 	perform 	the
non-classroom 	duties 	which 	are 	necessary
parts 	of 	a 	teaching 	assignment.
The 	use 	of 	each 	teacher's 	preparation 	time
was 	within 	the 	discretion 	of 	the 	teacher; 	it
was 	generally 	used 	for 	preparation 	of
lessons, 	grading 	of 	examinations 	or 	other
written 	work, 	or 	conferences 	with 	individual
students.
The 	Board 	affirmed 	the 	ALJ's 	conclusion 	that 	the 	district
violated 	the 	Act 	by 	unilaterally 	changing 	the 	amount 	of 	"paid
non-instructional 	time 11 	without 	negotiating 	such 	change.
While 	the 	foregoing 	PERE 	precedents 	do 	not 	address 	the 	issue
of 	access 	time 	but, 	rather, 	involve 	the 	negotiability 	of
preparation 	time, 	they 	are, 	nevertheless, 	instructive 	on 	the
issue 	of 	the 	nature 	of 	preparation 	time. 	Even 	where 	employees
have 	testified 	they 	used 	a 	portion 	of 	the 	time 	to 	rest 	or 	relax,
a 	decrease 	in 	the 	amount 	of 	that 	time 	was 	nevertheless 	found 	to
impact 	work 	hours. 	It 	is 	clear 	this 	Board 	views 	preparation
time, 	including 	that 	duty 	time 	before 	and 	after 	classes 	begin,
as 	part 	of 	the 	paid 	work 	time 	required 	of 	teachers 	without 	the
necessity 	of 	showing 	it 	is 	expressly 	and/or 	uniformly 	reserved
for 	preparation 	time. 	To 	take 	a 	contrary 	approach 	in 	the 	area
24

of 	access 	rights 	is 	inconsistent 	with 	the 	Board's 	established
precedents 	involving 	negotiations 	and 	unilateral 	changes.
Therefore, 	we 	conclude 	that 	these 	two 	20-minute 	periods 	(as
well 	as 	the 	conference/preparation 	period 	during 	the 	workday) 	do
constitute 	work 	time, 	and 	the 	employer 	may 	validly 	deny 	access
during 	that 	time. 	This 	is 	especially 	the 	case 	when 	the
Association 	is 	accorded 	access 	during 	the 	lunch 	and 	nutrition
breaks 	and 	prior 	to 	ana 	following 	these 	20-minute 	periods, 	as
well 	as 	immediately 	after 	school 	on 	the 	early-leaving 	day 	when
teachers 	are 	released 	from 	duties 	at 	the 	same 	time 	as 	the
students 	are 	dismissed.
Association 	Business 	Away 	from 	the
Presence 	of 	Students 	and 	Nonemployees
On 	the 	final 	issue 	of 	the 	District's 	regulation 	that 	requires
Association 	business 	to 	be 	conducted 	out 	of 	the 	presence 	of
students 	and 	nonemployees, 	we 	first 	note 	that 	the 	contract 	does
not 	address 	this 	subject 	and, 	therefore, 	the 	Association 	has 	not
waived 	its 	right 	to 	object 	to 	this 	regulation. 	We 	agree 	with
the 	ALJ 	that 	this 	regulation 	is 	unreasonable 	but 	do 	not 	entirely
agree 	with 	her 	analysis. 	The 	ALJ 	concluded 	this 	regulation 	is
11 overbroad 11 	and 	"vague." 	These 	terms 	are 	generally 	used 	in 	a
constitutional 	analysis, 	which 	is 	not 	appropriately 	applied 	to
this 	regulation. 	Rather, 	once 	the 	Association 	demonstrates
restrictions 	of 	its 	presumptive 	right 	of 	access, 	which 	is
apparent 	here 	on 	the 	face 	of 	the 	regulation 	itself, 	it 	is 	then
incumbent 	upon 	the 	District 	to 	rebut 	the 	presumption 	by
25

demonstrating 	that 	such 	access 	would 	be 	disruptive. 	See 	Long
Beach, 	supra, 	PERB 	Decision 	No. 	130; 	The 	Regents 	of 	the
University 	of 	California, 	University 	of 	California 	at 	Los 	Angeles
Medical 	Center 	(1983) 	PERB 	Decision 	No. 	329-H. 	Here, 	no 	evidence
was 	presented 	on 	this 	point, 	and 	we 	cannot 	conclude 	that 	the
regulation 	is 	reasonable 	on 	its 	face. 	Therefore, 	we 	affirm 	the
ALJ, 	but 	on 	the 	basis 	of 	tbe 	District's 	lack 	of 	proof.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law, 	and
the 	entire 	record 	in 	this 	case, 	it 	is 	hereby 	ORDERED 	that 	the
Long 	Beach 	Unified 	School 	District 	and 	its 	representatives 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
Enforcing 	the 	District 	regulation 	which 	requires 	that 	the
Teachers 	Association 	of 	Long 	Beach 	conduct 	organizational
business 	with 	employees 	during 	nonwork 	times- in 	nonwork 	areas
which 	are 	away 	from 	students 	or 	other 	nonemployees.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO 	EFFECTUATE
THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS 	ACT:
1. 	Within 	thirty-five 	(35) 	days 	following 	the 	date 	this
Decision 	is 	no 	longer 	subject 	to 	reconsideration, 	post 	at 	all
work 	locations 	where 	notices 	to 	employees 	customarily 	are 	placed,
copies 	of 	the 	Notice 	attached 	as 	an 	Appendix 	hereto, 	signed 	by
an 	authorized 	agent 	of 	the 	employer. 	Such 	posting 	shall 	be
maintained 	for 	a 	period 	of 	thirty 	(30) 	consecutive 	workdays.
Reasonable 	steps 	shall 	be 	taken 	to 	insure 	that 	this 	Notice 	is
not 	reduced 	in 	size, 	defaced, 	altered 	or 	covered 	by 	any 	material.
26

2. 	Provide 	written 	notification 	of 	the 	actions 	taken 	to
comply 	with 	this 	Order 	to 	the 	Los 	Angeles 	Regional 	Director 	of
the 	Public 	Employment 	Relations 	Board 	in 	accordance 	with 	his
instructions.
It 	is 	further 	ORDERED 	that 	all 	other 	portions 	of 	the 	unfair
practice 	charge 	and 	complaint 	are 	DISMISSED.
Member 	Craib 	joined 	this 	Decision. 	Member 	Burt's 	concurrence
and 	dissent 	begins 	on 	page 	28.
27

BURT,
	Member,
	concurring
	and
	dissenting:
	I
	agree 	with
	most
of
	the
	conclusions 	of
	the
	majority
	in
	this
	case.
	However,
	I
cannot 	agree
	that
	the
	District
	may
	lawfully
	prohibit
	access
	for
the
	20-minute
	periods 	before
	and
	after
	school.
The
	parties
	to
	this
	case
	first
	entered
	a
	"mini-contract",
after
	the
	PERB
	hearing
	on
	the 	previous 	Federation 	charges
concerning 	access, 	but 	before
	the
	decision
	of 	the
administrative
	law
	judge.
	In
	March
	1978
	the
	parties
	began
negotiations
	for
	a
	comprehensive 	agreement,
	and
	the
	ALJ's
decision
	issued 	during
	negotiations,
	in
	June 	1978. 	That
decision
	described 	the
	prohibition 	against
	solicitation
	during
the
	workday
	as 	the
	rule
	most
	problematic 	for 	the
	Federation.
The
	decision 	contains
	a
	lengthy
	discussion
	of
	the
	20-minute
periods,
	and 	an
	extensive 	analysis
	of 	the
	"working
hours/working
	time
11
	dichotomy 	under
	the 	National
	Labor
Relations
	Board
	(NLRB).
Negotiations
	between
	TALB
	and
	the
	District
	concluded
	on
	May
21,
	1979.
	At
	that 	point,
	the
	parties
	signed
	a
	contract
	with
ambiguous 	language
	regarding 	the
	workday.
	The
	contract
includes 	Article
	IV,
	section
	C,
	which
	provides 	as 	follows:
Association 	Business:
	The
	Association 	agrees
that
	its
	authorized
	staff
	and
	building
representatives 	shall
	not 	conduct 	Association
business 	with 	employees
	during 	regular
	workings
hours.
	It
	is
	agreed
	that
	non-duty 	times 	are 	as
follows: 	before
	and
	after
	the 	scheduled
	workday
of 	each 	employee, 	the 	nutrition 	break,
	and 	lunch
period.
	In 	no
	event 	shall
	any
	representative 	or
unit
	member
	interrupt 	or 	interfere 	in 	any
	way
with 	normal 	work.
	Any
	exceptions 	must 	be
approved 	by 	the 	appropriate 	division 	assistantsuperintendent. 	It 	is 	further 	agreed 	that 	this
section 	of 	the 	contract 	shall 	be 	amended 	toconform 	to 	the 	Public 	Employment 	Relations
Board's 	final 	decision 	on 	this 	matter.
(Emphasis 	added)

In
	May
	1980,
	PERE
	issued
	its
	decision
	in
	Long
	Beach
	Unified
School
	District
	(1980)
	PERE
	Decision
	No.
	130,
	concerning
	the
Federation's
	charges..
	In
	that
	decision,
	the
	Board
	determined,
among
	other 	things,
	that
	the
	prohibition
	on
	access 	during 	the
20-minute
	periods 	before
	and
	after
	school
	was
	unreasonable.
TALB
	approached
	the
	District
	to
	modify
	the
	contract 	to
	reflect
this
	decision, 	consistent
	with
	the
	contractual
	language
providing
	that
	the
	contract 	"shall
	be
	amended"
	to
	conform
	with
PERB's
	decision.
	The
	District
	refused 	to
	do
	so 	and,
	instead,
unilaterally 	altered
	its
	regulations 	to 	define
	what
	it
	thought
teachers
	were
	supposed
	to
	be
	doing
	during 	the
	20-minute
periods.
	It
	was
	at 	that 	point
	that
	TALB
	sought
	help
	from
	PERB
by
	way
	of
	PERB's
	compliance
	procedures. 	Finding
	that
compliance
	was
	not
	available,
	TALB
	filed
	charges 	with
	PERB,
complaining, 	as
	had
	the 	Federation,
	about 	the
	District's
	access
regulations,
	including 	those 	regarding 	the
	20-minute
	periods
before
	and
	after
	school.
Under
	these 	circumstances,
	I
	cannot 	find
	that
	an
	ambiguous
provision, 	apparently 	purposely
	left
	ambiguous 	by
	parties
	who
were 	on
	notice 	of 	the 	issues 	raised
	by
	that
	ambiguity
	and
awaiting
	clarification
	from
	PERE,
	consitututes
	a
	waiver
	of
access 	rights
	during 	these 	periods.
Further, 	while 	the 	majority 	apparently
	wishes
	that
	the
20-minute 	periods
	were 	working 	time, 	the
	ALJ
	in
	this
	case 	found
29

that
	the
	teachers' 	actual
	use
	of
	the
	20-minute
	periods 	before
and
	after
	school
	is
	"quite
	similar"
	to 	the
	uses
	found
	by
	the
ALJ
	in
	the
	1978
	hearing;
	that
	is,
	the
	20-minute
	periods 	are
working
	hours
	but
	not
	working
	time.
In
	addition 	to
	believing
	that
	the
	majority
	is
	in
	error
	on
this 	point,
	I
	find
	it
	of
	some
	concern
	that
	the
	District
apparently
	ignored 	the 	previous
	Board
	decision
	on
	this
	issue
	in
a
	successful
	effort
	to 	force
	a
	second
	employee
	association 	to
go
	through 	the
	entire
	PERB
	process
	once
	again 	in 	order
	to
	prove
the
	same
	facts
	as
	those
	found
	in 	the
	first
	decision: 	the
20-minute
	periods 	are 	not
	working 	time 	and,
	following 	the
NLRB's
	rule,
	TALB
	should
	be
	allowed
	access
	at
	that
	time.

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An 	Agency 	of 	the 	State 	of 	California
After 	a 	hearing 	in 	Unfair 	Practice 	Case 	No. 	LA-CE-1329,
Teachers 	Association 	of 	Long 	Beach 	v. 	Long 	Beach 	Unified 	School
District, 	1n 	which 	all 	parties 	had 	the 	right 	to 	participate, 	it
has 	been 	found 	that 	the 	Long 	Beach 	Unified 	School 	District
violated 	Government 	Code 	section 	3543.5(a) 	and 	(b) 	by 	adopting
and 	applying 	a 	regulation 	which 	unreasonably 	interfered 	with
employee 	organizations' 	right 	of 	access 	to 	employees 	as 	granted
by 	section 	3543.l(b) 	of 	the 	Act, 	by 	requiring 	employee
organizations 	to 	conduct 	organizational 	business 	with 	employees
during 	nonwork 	times 	in 	nonwork 	areas 	which 	are 	away 	from
students 	or 	other 	nonemployees.
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to 	post
this 	notice 	and 	we 	will:
CEASE 	AND 	DESIST 	FROM:
Enforcing 	the 	District 	regulation 	which 	requires 	that 	the
Teachers 	Association 	of 	Long 	Beach 	conduct 	organizational
business 	with 	employees 	during 	nonwork 	times 	in 	nonwork 	areas
which 	are 	away 	from 	students 	or 	other 	nonernployees.
Dated: 	LONG 	BEACH 	UNIFIED 	SCHOOL 	DISTRICT
By____,,__"".""":""--,---=---=----,------
Author1zed 	Agent
THIS 	IS 	AN OFFICIAL 	NOTICE. 	IT 	MUST 	REMAIN 	POSTED 	FOR 	AT 	LEAST
THIRTY 	(30) 	CONSECUTIVE 	WORKDAYS 	FROM 	THE 	DATE 	OF 	POSTING 	AND
MUST 	NOT 	BE 	REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED 	OR 	COVERED 	BY ANY
V.i.A TERIAL.

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
TEACHERS
	ASSOCIATION
	OF 	LONG
	BEACH,
Charging
	Party,
v.
LONG
	BEACH
	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
) 
Unfair
	Practice
Case
	No. 	LA-CE-1329
PROPOSED
	DECISION
(5/31/84)
_____________________
)
Appearances:	
A.
	Eugene
	Huguenin,
	Jr.,
	Attorney 	for 	Teachers
Association 	of
	Long 	Beach~
	Paul
	R.
	Causey,
	Attorney
	(McLaughlinand
	Irvin),
	Long
	Beach
	Unified
	School
	District.
Before:
	W.
	Jean
	Thomas,
	Administrative
	Law
	Judge.
PROCEDURAL
	HISTORY
This
	case
	presents
	a
	challenge 	to
	a
	school
	district's
promulgation
	and
	application
	of
	certain
	regulations
	which
	are
alleged 	to
	unreasonably
	interfere
	with 	the 	exclusive
representative's 	right
	of 	access
	to
	bargaining
	unit
	members.
On
	March
	16, 	1981, 	the 	Teachers
	Association 	of
	Long
	Beach
(hereafter
	TALB
	or 	Association)
	filed
	an 	Unfair
	Practice
	Charge
against
	the
	Long 	Beach
	Unified 	School
	District
	(hereafter
District)
	alleging
	a
	violation 	of 	the 	Educational
	Employment
Relations
	Act
	(hereafter
	EERA
	or
	Act.)l	
The
	District 	filed
an 	Answer 	on
	April 	6, 	1981.
	On
	April 	9, 	1981, 	the
	District
also 	filed
	a 	Motion
	to 	Particularize 	the 	charge.
	An
	informal
lThe 	Educational
	Employment
	Relations 	Act
	is 	codified 	at
Government 	Code
	section
	3540
	et 	seq. 	All 	statutory 	references
are 	to 	the 	Government 	Code.
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and

settlement 	conference 	was 	conducted 	by 	an 	administrative 	law
judge 	for 	the 	Public 	Employment 	Relations 	Board 	(hereafter 	PERE
or 	Board) 	on April 	15, 	1981, 	but 	the 	conference 	failed 	to
resolve 	the 	dispute. 	Following 	the 	informal 	conference, 	the
Charging 	Party 	filed 	a 	Response 	to 	the 	Motion 	to 	Particularize
the 	Charge 	on 	April 	27, 	1981. 	The 	charge, 	as 	particularized,
alleges 	that 	the 	District, 	by 	applying 	its 	regulations 	to 	TALB
activities, 	has 	unreasonably 	interfered 	with 	the 	Association's
right 	of 	access 	guaranteed 	by 	section 	3543.l(b) 	by 	the
following:
(1) 	Limiting 	the 	time 	for 	conduct 	of 	employee 	Association
business 	and 	employee 	personal 	business 	time 	to 	outside 	"duty
hours" 	and, 	therefore, 	to 	include 	as 	working 	hours 	and 	exclude
as 	access 	time, 	the 	20-minute 	periods 	before 	and 	after 	school
and 	the 	daily 	conference 	periods 	within 	the 	duty 	day 	during
which 	times 	the 	employee 	is 	required 	to 	be 	at 	the 	site 	without
specified 	duties; 	and
(2) 	Limiting 	Association 	access 	to 	employees 	by 	specifying
locations 	where 	Association 	representatives 	may 	meet 	with
employees 	and 	requiring 	24-hour 	advance 	notice 	for 	room
arrangements 	when 	"it 	is 	anticipated 	that 	Association 	business
is 	to 	be 	conducted 	formally 	or 	informally 	with 	a 	large 	group 	of
employees." 	Such 	conduct 	is 	further 	alleged 	to 	have
constituted 	violations 	of 	section 	3543.S(a) 	and 	(b) 	of 	the 	EERA.
2

On 	May
	6,
	1981,
	the
	Respondent
	filed
	an
	Answer
	to
	Response
of
	Charging
	Party 	to
	Motion
	to
	Particularize,
	admitting
	that
	it
promulgated 	the
	revised
	regulations
	in
	September 	1980, 	and
asserting
	as
	one
	of
	its
	affirmative
	defenses,
	that
	the
regulations
	were
	reasonably
	and
	validly
	promulgated
	pursuant
	to
the
	power 	and
	authority
	granted
	to
	the
	District
	under
	the
	laws
of
	the
	State
	of
	California.
A
Complaint
	and
	Notice 	of
	Hearing
	was
	issued
	by
	the 	Chief
Administrative
	Law
	Judge
	of
	PERE
	on
	April
	30,
	1981,
	scheduling
the
	first
	day
	of 	hearing 	for
	June 	26,
	1981.
	Later,
	this
	date
was
	reset
	due
	to
	scheduling
	conflicts.
	The
	case
	was
	heard
before 	the 	undersigned
	on
	September 	22, 	23,
	December
	3,
	4
	and
8,
	1981;
	February
	8, 	9,
	10,
	April 	1,
	and
	2,2	
May
	20,
October
	28
	and 	29,
	November
	1,
	1982; 	and
	January 	19,
	1983.
Post-hearing briefs
	were
	filed	
by	
both
	parties
	and
	the 	case
	was
thereafter
	submitted 	for
	proposed
	decision.
FINDINGS
	OF
	FACT
A.
	Background
The
	parties 	stipulated 	that
	the
	District 	is
	a
	public 	school
employer
	within 	the
	meaning
	of 	the
	Act
	and
	that
	TALB
	is
	the
2oue
	to
	a 	mishap
	that
	occurred 	during 	the 	mailing 	of 	the
hearing 	tapes 	for 	April
	1 	and
	2,
	all
	the 	tapes 	for
	this 	session
were
	lost
	in 	the 	mail.
	The
	hearing
	was
	recessed, 	pending
	a
search
	by
	the
	u. 	s.
	Postal 	Service.
	The
	tapes
	were 	never
recovered 	so 	the 	October 	28, 	29 	and 	November 	1
	sessions
	were
necessary 	in 	order 	to 	re-hear 	the
	lost
	testimony.
3

exclusive 	representative
	of
	the
	certificated
	K-12
	employee
bargaining
	unit
	of
	the
	District.3	
The
	unit 	consists
	of
	all
regular
	certificated
	employees 	under
	contract
	including
classroom,
	Junior
	ROTC
	instructors,
	and
	specialist
	teachers;
program
	facilitators,
	nurses,
	nurse
	facilitators,
	and
librarians.
	It
	excludes
	all
	school
	counselors,
	guidance
counselors, 	psychological
	services
	specialist,
	Child
Development
	Center
	teachers,
	substitute
	teachers, 	part-time
hourly
	teachers,
	management,
	supervisory
	and
	confidential
employees. 	There
	are
	approximately
	2700
	employees
	in 	the
bargaining
	unit,
	of
	which 	1700-1800
	are
	members
	of
	TALB.
In
	grades
	K-12
	there
	is
	an
	enrollment
	of
	approximately
57,000
	students.
	The
	area 	served
	by
	the
	District
	includes
Santa
	Catalina 	Island.
	There
	are
	53
	elementary 	school
	sites,
2
	special
	schools,
	14
	junior
	high
	schools,
	1
	junior-senior
	high
school,
	5
	senior
	high
	schools,
	1
	continuation
	high 	school
	and
l.school
	for
	adults.
The
	District's
	student 	population
	is
	composed
	of 	diverse
racial
	and
	ethnic 	groups. 	In 	the
	1981-82
	school 	year
3Official 	notice 	is
	taken 	of 	the
	PERB
	representational
files
	maintained 	in 	the
	Los
	Angeles
	PERB
	Office.
	Case
	file
LA-R-47A 	shows
	that
	TALB
	was
	certified
	by
	the
	PERB
	as 	the
exclusive 	representative 	of 	the 	Certificated
	Employee
	Unit
(Unit
	A)
	on 	December
	19, 	1977.
	On
	this
	same
	date
	TALB
	was
	also
certified	
by	
PERB
	as 	the 	exclusive 	representative 	of 	the 	ChildDevelopment 	Center 	Teachers 	Unit 	(Unit
	C)
(LA-R-47C). 	However,
access 	to
	members
	of 	the
	latter 	unit 	is 	not
	an
	issue 	in 	thischarge.
4

grades
	K-12 	were
	comprised
	of
	48.8
	percent 	whites,
	19.8
	percent
Hispanics,
	19.4
	percent 	blacks,
	and
	12.0
	percent 	other
non-caucasians
	which
	included
	American
	Indians,
	Asians
	or
Pacific
	Islanders,
	and
	Filipinos.
	This
	diversity
	was
demonstrated
	at
	one
	junior
	high
	school
	where
	the 	enrollment
consisted
	of
	students 	representing
	27
	different
	ethnic
	and
minority
	groups 	speaking
	15
	different
	languages.
Since 	the
	TALB
	was
	certified
	as 	the
	exclusive
representative,
	the
	parties
	have
	entered
	into 	several
collective
	bargaining
	agreements.
	The
	first
	agreement,
	which
they
	refer
	to
	as
	a
	"mini-contract 	or
	agreement,"
	was
	negotiated
in
	1978
	for
	a
	term
	extending
	from 	March
	13,
	1978,
	to
October 	15,
	1978.
	The
	first
	comprehensive
	collective
bargaining
	agreement 	covered
	the 	period
	from
	May
	21, 	1979,
through
	August 	31, 	1981.
	Pursuant 	to 	the 	reopener
	provisions
of
	that
	agreement,
	and
	subsequent
	negotiations,
	the
	term
	of
that
	agreement
	was
	extended
	to
	June 	30, 	1982. 	At
	the 	time
	of
the 	hearing 	the
	terms
	of
	this
	agreement
	were
	still
	in
	effect.
B.
	Events 	Leading
	to 	the 	Current
	Charge
On
	October
	1,
	1976,
	the
	District
	promulgated
	a
	set
	of
administrative 	regulations
	entitled
	"Administrative
Regulations: 	Association Activities
	Involving
	District
Employees 	and 	Employee
	Associations."
	These
	regulations
	were
5

issued 	in 	memorandum 	form 	by 	the 	District's 	then-coordinator 	of
employee 	relations, 	William Marmion, 	and 	distributed 	to 	all
District 	management 	and 	supervisory 	employees 	and 	employee
organizations. 	The 	regulations 	set 	forth 	the 	District's 	rules
concerning 	on-campus 	activities 	by 	employee 	organizations.
Subsequently, 	certain 	provisions 	of 	these 	regulations 	became
the 	subject 	of 	an 	unfair 	practice 	charge 	filed 	by 	the 	Long
Beach 	Federation 	of 	Teachers, 	Local 	1263, 	AFT, 	AFL-CIO
(hereafter 	AFT) 	on August 	24, 	1977.4 	In 	the 	resulting 	PERB
decision, 	Long 	Beach 	Unified 	School 	District 	(5/28/80) 	PERB
Decision Noe 	130, 	the 	Board 	found 	that 	various 	provisions 	of
the 	contested 	regulations 	were 	unreasonable 	within 	the 	meaning
of 	section 	3543.l(b) 	and 	constituted 	unlawful 	interference 	with
access 	rights 	guaranteed 	by EERA, 	in 	violation 	of 	section
3543.S(a) 	and 	(b).
Not 	all 	of 	the 	regulations 	challenged 	in 	Long 	Beach, 	supra,
are 	in 	dispute.in 	this 	case. 	One 	of 	the 	rules 	to 	which
4Qfficial 	notice 	is 	taken 	of 	ali 	PERB 	files 	maintained
regarding 	this 	charge, 	including 	the 	proposed 	decision 	issued
by 	the 	hearing 	officer 	on June 	2, 	1978, 	and 	the 	Board's
subsequent 	decision.
These 	records 	show 	that 	TALB 	requested 	permission 	to 	join
as 	a 	party 	to 	the 	action 	on 	October 	24, 	1977, 	and 	the 	request
was 	granted. 	Thereafter, 	pursuant 	to 	an 	informal 	settlement
agreement, 	among 	other 	things, 	TALB 	withdrew 	as 	a 	party 	to 	the
case.
6

objections
	were
	raised
	in
	that
	case
	and
	is
	again
	in
	issue 	here,
was
	entitled
	"Activity
	Hours."5 	This
	regulation
	banned
5This
	rule,
	in
	pertinent
	part, 	stated
	as 	follows:
II.
	Activity
	Hours
A. 	Employee
	Association 	Business--All
activities
	concerning
	association 	business,
	as
defined,
	shall
	be
	conducted
	outside
	duty 	hours
	of
	the
workday
	for 	the
	individuals
	involved. 	All
	association
business
	when 	on
	district
	property
	shall
	be
	conducted
away 	from
	students
	and
	other
	non-employees.
(Example:
	No
	association
	business
	shall
	be
	conducted
during
	such
	events
	as
	PTA
	or
	Advisory 	Council
meetings,
	Open
	Houses,
	etc.,
	or 	in
	the 	presence
	of
VIPS
	or
	other
	non-employees.)
. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	e 	. 	. 	. 	. 	.
c.
	Workdays--Definitions 	apply 	as
	follows:
1.	
Teachers
	(includes
	Math/Reading
Specialists)--Normally,
	the
	teachers'
	workday
extends
	from 	20
	minutes
	before 	the
	first
	assigned
period 	to
	20
	minutes
	after
	the
	last
	assigned
period; 	including
	class,
	conference,
	and
preparation 	periods.
	(Kindergarten 	teachers
	have
the
	same 	workday
	as
	other 	elementary
	teachers.
Elementary
	teacher-librarians
	work 	a
	7-hour
day.)
	It
	also 	includes
	additional 	relatedservice
	time 	such 	as
	after
	school
	and
	evening
supervision 	of 	student
	body
	activities
	and
	other
extra-curricular 	duties.
	(Emphasis
	in
	original.)
2. 	Other 	Employees--All 	other 	regular
	full
time 	employees 	have 	an
	eight-hour 	day, 	exclusive
of
	a
	lunch
	period.
3.	
Nutrition
	and 	Lunch--No
	part 	of 	the
duty-free 	nutrition
	and 	lunch 	periods 	(except 	for
passing 	time 	supervision 	of 	students
	when
assigned)
	is
	considered 	to
	be
	duty 	time.
7

employee
	association
	business6 	during
	an
	employee's
	"duty
hours"
	of
	the
	workday.
Another
	disputed
	rule,
	which
	is
	again
	being
	challenged,
prohibited
	various
	organizational
	activities
	by
	employees
during 	the 	duty 	hours
	of
	their
	workday.
	Such
	activities
included
	any
	solicitation
	or
	distribution
	related
	to
association
	business.7
6These
	same
	rules
	defined
	"employee
	association
	business"as:
...
	any
	activity
	related
	to 	recruitment 	of
members,
	circulation
	of
	petitions,
	election
campaigning,
	or 	other 	matters
	relating
	to
unit
	determination 	hearings
	and
	exclusive
representation 	elections.
7This
	rule
	read 	as 	follows:
III.
	Prohibited
	Activities
	by
	Employees
During
	Duty 	Hours
The
	following
	is
	a
	partial
	list
	of
	activities
which
	may
	not
	be
	conducted
	by
	employees
	during 	the
duty 	hours
	of
	their
	workday
	(emphasis
	in
	original):
A.	
Planning, 	attending,
	or 	conducting
association
	business 	meetings
B.	
Soliciting
	employee 	membership
	in
	an
association
C.	
Meeting
	for 	the 	purpose 	of
	collectingsignatures 	for 	exclusive 	representation
petitions
	or
	related 	activity
D~	
Campaigning
	prior 	to
	a
	hearing 	or
	an
	election
E.	
Soliciting
	employees 	for 	funds 	or 	services
in 	behalf 	of
	an 	employee
	association
F. 	Preparing 	or 	duplicating 	written 	material
for 	association 	business 	purposes
8

The 	AFT 	also 	objected 	to 	a 	rule 	requiring 	employee
organization 	representatives 	who 	did 	not 	work 	on 	the
campus 	where 	an 	informal 	or 	formal 	meeting 	was 	to 	take
place 	to 	make 	arrangements 	at 	least 	one 	day 	in 	advance 	for
meetings 	with 	four 	or 	more 	employees.8
G. 	Contacting 	employees 	or 	association
representatives 	for 	the 	purpose 	of 	transacting
association 	business
Note: 	Secretaries 	and 	clerks 	will 	place 	messages
regarding 	incoming 	calls 	in 	employee 	mailboxes 	but
will 	not 	deliver 	messages 	to 	rooms 	or 	other 	sites.
H. 	Distributing 	written 	materials 	on 	association
business
I. 	Using 	district 	facilities, 	equipment, 	supplies 	as
per 	section V., 	paragraph 	E. 	5. 	of 	this 	bulletin
8The 	rule 	concerning 	the 	prior 	arrangement 	requirement
read, 	in 	pertinent 	part, 	as 	follows:
V. 	Organizing 	Activities 	by Employee 	Associations
. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	·. 	. 	. 	. 	e
D. 	Facilities 	Arrangements
. 	. 	. 	. 	. 	. 	. 	. . 	. 	. . . 	. 	. 	. . 	. 	. 	. 	. 	. 	.
2. 	Association 	Business 	with 	Groups 	of
Employees--When 	it 	is 	anticipated 	that
association 	business 	is 	to 	be 	conducted
informally 	or 	formally 	with 	a 	group 	of 	four 	or
more 	employees, 	room 	arrangements 	must 	be 	made 	at
least 	one 	day 	in 	advance 	of 	the 	meeting. 	The
request 	for 	access 	must 	be 	made 	to 	the 	site
mana9er 	or 	supervisor 	and 	shall 	include 	the
specific 	date, 	time 	and 	size 	of 	a 	facility
requested. 	The 	principal 	or 	office 	head 	will
evaluate 	the 	request 	and 	normally 	authorize 	use
of 	the 	facilities 	while 	mindful 	of 	the 	district's
need 	to 	balance 	fairly 	the 	rights 	of 	all
employees, 	of 	other 	associations, 	and 	of 	the
district 	itself. 	Failure 	to 	make 	arrangements 	in
advance 	shall 	be 	grounds 	for 	prohibiting 	any 	such
meetings 	at 	the 	site. 9

With
	respect 	to
	this
	latter
	rule,
	the
	Board
	reached
	the
following 	conclusion:
The
	Board
	finds
	that
	the
	District's
	rule
	is
reasonable
	and
	it
	may
	legitimately
	require
that
	one 	day
	advance
	notice
	be
	given
	in
order 	for
	an 	employee
	organization 	to
	secure
the
	use
	of
	rooms
	not 	normally 	used	
by
nonworking
	employees.
	However,
	to
	the
extent 	that
	the
	District's
	rule
	appears
	to
require
	that
	all
	meetings 	with 	four 	or
	more
employees
	be
	conducted
	at
	such
	pre-arranged
facilities,
	the
	regulation
	is
	unreasonable.
The
	Board
	recognizes, 	of 	course,
	that
	in
certain 	settings,
	unlike 	lounges,
	lunchrooms
or 	other
	nonworking
	areas, 	large
	gatherings
of
	employees
	may 	be
	disruptive
	of 	the
educational 	process 	unless
	they
	are
conducted
	in 	appropriate
	facilities,
	for
which
	advance
	notice
	is
	generally 	required.
However,
	absent 	the
	nonavailability
	of
appropriate
	facilities
	or
	a
	showing
	ofprobable
	disruption
	of 	school
	functions,
there
	is
	no
	justification
	for 	the
	District's
rule
	which
	has
	the
	result
	of
	denying 	an
employee
	organization
	the
	right
	to
	use 	such
facilities
	for
	organizational
	activity
conducted
	during
	nonworking
	hours.
(Long 	Beach
	Unified 	School
	District,
	supra,
at
	p. 	22.)
It
	determined
	that 	certain
	of 	the 	other 	challenged
regulations,
	including 	sections
	II
	and
	III
	set 	forth
	above,
were
	unreasonable, 	unlawfully
	interfered
	with 	the
	employee
organizations' 	right 	of 	access 	to
	employees 	and 	were
	therefore
in
	violation
	of 	the
	EERA.
In 	response 	to 	this 	decision 	the
	District
	revised 	the
regulations
	and
	reissued
	them,
	effective
	September 	15, 	1980, 	in
the
	same
	bulletin
	form 	as 	before.
	A cover
	memo
	addressed 	to
principals, 	office
	heads 	and 	employee
	organization 	stated 	that
10

the 	changes 	made 	were 	"pursuant 	to 	a 	recent 	PERB 	Decision."
Also 	attached 	was 	a 	copy 	of 	a 	document 	entitled 	"Log 	of Visits
of 	Employee 	Association 	Representative," 	which 	was 	to 	be 	used
by 	association 	representatives 	when 	they 	visited 	local 	school
sites 	on 	association 	business. 	The 	cover 	memo 	also 	stated 	that
"[r]epresentatives 	may 	be 	asked 	for 	commonly-accepted 	forms 	of
identification 	at 	the 	time 	they 	check 	in." 	The 	first 	page 	of
the 	bulletin 	stated 	that 	the 	regulations 	superseded 	those
issued 	October 	1, 	1976, 	and 	were 	to 	be 	brought 	to 	the 	attention
of 	staff 	and 	members 	of 	an 	association, 	and 	posted.
Those 	parts 	of 	the 	revised 	regulations 	which 	are 	again 	in
issue 	are 	set 	forth 	below.
II. 	Activity 	Hours
A. 	Employee 	Association 	Business--All 	activities
concerning 	association 	business, 	as 	defined,9
shall 	be 	conducted 	outside 	duty 	hours 	of 	the
workday 	for 	the 	individuals 	involved. 	All
association 	business 	when 	on 	district 	property
shall 	be 	conducted 	in 	non-work 	areas 	during
non-work 	periods 	away 	from 	students 	and 	other
9The 	term 	"empl61~~ 	association 	business" 	is 	defined 	as:
... 	any 	activity 	related 	to 	recruitment 	of
members, 	circulation 	of 	petitions, 	election
campaigning, 	matters 	relating 	to 	unit
determination 	hearings 	and 	exclusive
representation 	elections, 	or 	other 	business
of 	the 	association.
NOTE: 	An 	association/union 	which 	has 	been
certified 	by 	the 	PERB 	as 	an 	exclusive
representative 	has 	additional 	specified
rights 	provided 	by 	law.
11

non-employees.
	(Example:
	No
	association
business
	shall
	be
	conducted
	during
	such
events
	as
	PTA
	or
	Advisory 	Council
	meetings,
Open
	House,
	etc.,
	or
	in
	the 	presence
	of
	VIPS
or
	other
	non-employees.)
B.
	Personal Businessl0--Conferences
	on
	the
personal
	employment
	problems
	of
	an 	employee
shall
	be
	conducted
	outside
	duty 	hours 	of 	the
workday
	for 	the
	individuals
	involved.
(Emphasis
	in
	original.)
C.
	Workdavs--Definitions
	apply 	as
	follows:
1.	
Teachers
	(includes
	Math/Reading
Specialists)--Normally,
	the
	teachers'
	workday
extends
	from 	20
	minutes
	before 	the
	first
	assigned
period
	to
	20
	minutes
	after
	the
	last
	assigned
period; 	including
	class,
	conference,
	and
preparation 	periods.
	The
	20-minute
	periodsbefore
	and
	after
	the
	instructional
	day
	are
	deemed
to
	be
	duty
	time
	to
	be
	used
	for
	consultation
	with
students, 	parents
	and/or 	school
	personnel, 	or
class
	preparation 	in
	classrooms 	or 	school
offices,
	or 	for 	supervisory
	duty
	directed
	by
manager.*	
(Kindergarten
	teachers
	have
	the
	same
workday
	as
	other
	elementary
	teachers.
	Elementary
teacher-librarians
	work 	a
	seven-hour 	day.)
	It
also
	includes
	additional 	related 	service
	time
such 	as
	after
	school
	and
	evening
	supervision 	of
student
	body
	activities
	and
	other
extra-curricular 	duties.
	(Emphasis
	in
	original.)
2&	
Other
	Classified
	and
	Certificated
Employees--All
	other 	regular
	full
	time 	employees
have 	an
	eight-hour
	day,
	exclusive 	of
	a
	lunch
period.
*See
	appropriate 	job
	descriptions 	for
	lists
	of
duties.
10In 	the 	revised 	bulletin
	the 	term 	"personal 	business"
	is
defined 	as:
...
	any
	activity 	initiated
	by 	an
individual
	employee 	who
	has 	the 	need
	to
consult 	with 	an
	association 	representativebecause 	of
	some
	personal
	employment
	mattersuch 	as 	the 	processing 	of
	a 	grievance.
12

3.	
Nutrition
	and 	Lunch--No
	part
	of 	the
duty-free
	nutrition
	and
	lunch
	periods
	(except
	forpassing
	time
	supervision 	of
	students
	when
assigned)
	is
	considered
	to
	be
	duty 	time.
4. 	Child
	Development
	Center
	and
	Other
	Part-time
Employees
	(including
	Teacher
	Aides)--Meetings 	for
these
	employees
	may
	be
	arranged
	at
	work
	sites
	so
long 	as 	they
	do
	not
	conflict
	with 	the
	individual
employee's 	duty
	time
	and 	do
	not
	disrupt
	the
	work
function 	of 	other
	employees
	still
	on
	duty.
Access
	rights
	of
	associations 	to
	these
	employees
shall
	be
	respected 	within 	reason.
III.
	Prohibited
	Activities
	by
	Employees
	During
	Duty
Hours
The
	following
	is
	a
	partial
	list
	of
	activities
which
	may
	not
	be
	conducted 	by	
employees
	during
the 	duty 	hours
	of
	their
	workday
	(emphasis
	in
original):
A.	
Planning,
	attending,
	or
	conducting
association
	business 	meetings.
B.	
Soliciting
	employee 	membership
	in
	an
association.
C.	
Meeting
	for 	the 	purpose
	of
	collectingsignatures
	for 	exclusive 	representation
petitions
	or
	related
	activity
D.	
Campaigning
	prior
	to
	a
	hearing 	or
	an
	election
E.	
Soliciting
	employees
	for
	funds
	or
	servicesin 	behalf 	of
	an 	employee
	association
F.	
Preparing 	or
	duplicating 	written 	materialfor
	association 	business 	purposes
G.	
Contacting
	employees
	or
	association
representatives 	for 	the 	purpose 	of
transacting 	association 	business
Note:
	Secretaries
	and
	clerks 	will 	placemessages 	regarding 	incoming
	calls
	inemployee 	mailboxes 	but 	will 	not 	delivermessages 	to
	rooms
	or 	other
	sites.
13

H.	
Distributing 	written 	materials
	on
association
	business
Note:
	Off-duty
	employees
	may
	distribute
materials
	to
	mailboxes
	or
	to 	other
	off-duty
employees
	on
	non-duty 	time.
	(See
	Section
	V,
paragraph
	D.l,
	page
	6.)
I.	
Using
	district 	facilities,
	equipment,
supplies
	as 	per
	Section
	v., 	paragraph
D.
	4,
	p.7.
v.
	Organizing
	Activity	
by 	Employee
	Associations
. 	. 	. . 	. . 	. 	. 	. . 	. 	. 	. . 	. 	. 	. 	. 	. 	.
c.
	Facilities
	Arrangements
. 	. 	. 	. 	. 	. 	. 	. 	. 	. 	. . 	. 	. . 	. . 	. . 	.
1. 	Association
	or
	Personal 	Business
	with
Individual
	Employees--An
	assoc1at1on
representative
	who
	is
	not
	employed
	at
	the
site
	may
	meet
	privately
	with 	small
	groups
	of
employees
	during 	non-duty 	hours
	in
	a
	lounge,
workroom, 	lunchroom
	or 	other 	similar
	area 	solong 	as 	the
	conversation
	will
	not
	seriously
disrupt
	or
	interfere
	with 	the
	use
	of 	the
area
	by
	others.
	The
	specific
	lounge 	or
other 	area
	may 	be
	specified
	by
	the
	site
manager
	or
	supervisor.
2.	
Association 	Business 	with
	Groups
	of
Employees--When
	it
	is
	anticipated 	thatassociation 	business
	is
	to
	be
	conducted
informally 	or 	formally 	with
	a
	large
	group
	of
employees
	relative
	to
	the
	size 	of 	the
	room,
room
	arrangements
	must 	be 	made
	at 	least
	one
day
	in
	advance
	of 	the 	meeting.
	The
	requestfor 	access
	must 	be 	made
	to
	the
	site
	manager
or 	supervisor
	and
	shall
	include 	the
	specificdate, 	time,
	and
	size 	of 	the
	facility
requested.
	The
	principal
	or
	office
	head
will 	evaluate 	their 	request
	and
	normally,
authorize 	the 	use
	of 	the
	facilities
	while
mindful 	of 	the
	district's
	need
	to 	balance
fairly
	the 	rights 	of
	all
	employees, 	of 	other
associations,
	and
	of 	the
	district 	itself.Failure 	to
	make 	arrangements 	in 	advance
shall
	be 	grounds 	for 	prohibiting
	any 	such
14

meetings
	at
	the
	site.
	(Emphasis
	in
original.)
3.	
Right
	of
	Refusal--The
	site
	manager
	has
the
	right
	to 	refuse
	permission
	to
	use
	a
facility
	if
	appropriate
	facilities
	are 	not
available
	or
	if
	there
	will
	be 	a
	probable
disruption
	of
	school
	functions.
During
	the
	summer
	of
	1980 	and
	just
	prior
	to 	the
	District's
issuance 	of 	the
	modified
	regulations, 	Shirley
	Guy,
	Executive
Director 	of
	TALB,
	contacted
	Marmion
	about 	having
	a
	meeting
	to
discuss 	revisions
	of
	the
	1976
	regulations
	based
	on
	the
	Board's
rulings
	in
	Long
	Beach,
	supra.
	A
meeting
	was
	eventually
scheduled 	for
	September 	11; 	1980,
	but
	was
	cancelled
	by 	Marmion
and
	not 	rescheduled. 	Shortly
	thereafter,
	Marrnion's
	position
with
	the
	District
	was
	changed
	and 	he 	no
	longer
	had
responsibility
	for
	employee
	relations
	activities.
On
	October 	22, 	1980,
	Ms. 	Guy
	wrote
	to
	Torn
	Collins,
	the
	new
coordinator 	of
	employee
	relations
	and
	former
	assistant
	to
Marmion,
	requesting
	a
	meeting
	to 	discuss
	"a
	number
	of
	[TALB]
concerns" 	regarding 	the
	newly 	amended
	regulations.
	On
	that
same
	date,
	Guy
	wrote
	to 	Frances
	Kreiling,
	Regional
	Director 	of
the
	PERB
	Los 	Angeles 	Regional
	Office,
	and
	requested
	an
investigation 	into 	the
	District's
	compliance 	with
	PERB
	Decision
No. 	130 	(Long
	Beach,
	supra).
	In 	her
	letter
	Guy
	stated 	the
following:
The
	District
	has 	posted 	Notices 	in 	the
schools 	of 	the
	District.
	The
	District
	has
also
	amended
	its
	regulations 	governingEmployee
	Association 	Activities.
	However,
it 	is 	the 	feeling 	of 	the 	Teachers
15

Association 	of 	Long 	Beach 	that 	the 	revised
regulations 	do 	not 	comply 	with 	the 	Order 	of
the 	Decision 	[PERE 	Decision No. 	130,
LA-CE-171] 	and 	further 	that 	the
implementation 	of 	the 	regulations 	do 	not
comply 	with 	the 	provisions 	of 	the 	Order.
Sometime 	in 	late 	October 	or 	early 	November 	of 	1980, 	Guy 	and
Collins 	had 	a 	meeting 	on 	another 	matter 	during 	which 	time 	they
discussed 	the 	amended 	regulations. 	Also 	present 	at 	the 	meeting
were 	Robert 	Welborn, 	a 	field 	representative 	for 	TALB, 	Donald
Goddard, 	president 	of 	TALB, 	Donald 	Ashley, 	assistant
superintendent, 	personnel 	services 	division 	and 	Marjorie
Ingram, 	assistant 	coordinator, 	employee 	relations.
During 	the 	meeting, 	Guy 	stated 	the 	Association's 	belief
that 	the 	revised 	regulations 	did 	not 	conform 	to 	the 	mandate
expressed 	in 	PERE 	Decision No. 	130. 	Collins 	took 	the 	position
that 	the 	amended 	regulations 	did 	conform 	to 	the 	PERB 	order. 	At
the 	conclusion 	of 	the 	meeting, 	their 	positions 	were 	unchanged
and 	the 	matter 	remained 	unresolved.
Sometime 	during 	this 	same 	period, 	Kreiling 	contacted
Collins 	by 	telephone 	to 	inform 	him 	that 	TALB 	had 	requested 	an
investigation 	regarding 	the 	District's 	compliance 	with 	the
Board 	Order 	in 	Long 	Beach, 	supra. 	In 	a 	letter 	to 	Guy 	dated
December 	4, 	1980, 	Kreiling 	requested 	specific 	allegations 	about
the 	District's 	non-compliance 	with 	the 	PERE 	Order.
On 	December 	16, 	1980, 	Guy 	sent 	Kreiling 	a 	lengthy 	letter
which 	characterized 	the 	changes 	in 	the 	regulations 	as 	"window
dressing," 	outlined 	the 	Association's 	view 	of 	the 	lack 	of
16

substance 	in
	the
	changes
	actually
	made
	in
	the
	1976
	regulations,
and
	cited
	examples
	of
	difficulties
	that
	TALB
	representatives
were
	encountering 	in 	attempting 	to
	gain 	access
	to 	teachers
during 	the
	20-minutes
	before
	and
	after
	the 	assigned
instructional
	periods.
On
	February
	11, 	1981,
	Kreiling
	notified
	Guy 	by
	letter,
	that
pursuant 	to
	her
	investigation
	of
	TALB's
	complaint,
	she
	was
denying 	the
	Association's
	request 	for
	initiation
	of
	compliance
procedures
	stating,
	among
	other 	things,
	that
	TALB
	lacked
standing
	as
	a
	party 	to
	the 	proceeding
	in
	Long
	Beach,
	supra.
Kreiling
	did 	note
	that
	TALB
	was
	not
	foreclosed
	from
	filing
	an
unfair 	practice
	charge
	against
	the
	District.
	On
March
	16,
	1981,
	the
	instant
	charge
	was
	filed.
C.
	History 	of 	Collective
	Bargaining 	Negotiations
	Between
	the
Parties
In 	the 	spring 	of
	1978
	the
	parties
	negotiated
	their
	first
collective
	bargaining
	agreement
	(CBA)
	which 	was
	in
	effect
	for
the 	period
	from 	March
	13, 	1978, 	through 	October 	15, 	1978.
	This
agreement,
	referred 	to 	by 	the
	parties
	as
	the 	"mini-contract 	or
agreement,"
	was
	negotiated 	shortly 	after
	TALB
	was
	certified
	as
the
	certificated 	unit 	exclusive 	bargaining 	representative.
	The
intent 	of
	this
	agreement
	was
	to 	achieve
	a
	quick
	resolution 	of
salary 	matters 	for 	the 	bargaining 	unit
	and
	to 	maintain 	the
status
	quo
	with 	respect 	to
	all
	other 	areas 	pending 	future
17

negotiations.
	Evidence
	of
	this 	intent
	was
	placed
	in Article
	VI
-
	Negotiation 	of
	Successor
	Contract,
	section
	6.20
	which
	stated
as
	follows:
The
	Association
	and
	the
	District
	further
agree
	that
	for 	the
	duration
	of
	this
agreement,
	the
	District's
	existing 	written
policies
	and
	regulations
	on
	salaries
	and
fringe
	benefits,
	hours
	of
	employment,
voluntary
	payroll
	deductions, 	leaves 	ofabsence,
	transfer,
	safety
	conditions 	of
employment,
	class 	size,
	evaluationprocedures, 	grievance
	processing,
	and
association
	activities
	shall
	remain
	in
effect
	unless
	a
	change
	is
	mutually 	agreed
upon 	by
	the
	parties
	to
	this
	agreement.
At
	that
	time
	the
	District
	regulations
	covering
	employee
organization
	activities
	were
	the
	same 	1976
	access
	regulations
which 	were
	being
	challenged 	before
	PERB
	and 	were
	subsequently
lit1gated
	in
	Long
	Beach
	Unified
	School
	District,
	supra.
Shortly
	after
	entering 	into
	the
	mini-contract,
	the
	parties
commenced
	negotiations 	for
	a 	more
	comprehensive
	CBA.
	Those
negotiations,
	which
	included
	impasse
	and 	a
	PERE-appointed
mediator,
	lasted
	from 	March 	1978
	until
	May
	1979.
	The
	resulting
contract,
	which 	was
	the 	second
	CBA
	between
	the
	parties,
	but
their
	first
	comprehensive 	agreement,
	was
	in
	effect
	for 	the
period
	from
	May
	21,
	1979
	to
	August 	31, 	1981.
The 	above
	negotiations 	included 	extensive 	discussions 	about
Association 	rights
	and
	access 	to
	members
	of 	the 	bargaining
unit.
	Following 	the
	initiation
	of 	these 	bargaining 	sessions,
the 	hearing
	officer's
	proposed 	decision 	in
	LA-CE-171 	(which
provided 	the 	basis 	for
	PERB
	Decision 	No. 	130) 	was
	issued 	on
18

June
	2,
	1978. 	Thus,
	while
	the
	parties
	were
	in
	the
	midst
	of
their
	negotiations,
	they
	were 	aware
	of
	the
	fact 	that
	the
proposed
	decision
	had 	found
	parts
	of 	the
	District's
	regulations
governing
	employee
	organization
	access
	to
	be
	unreasonable
	and
therefore,
	in
	violation
	of 	the
	Act.
	They 	were
	also
	aware
during
	this
	time
	that
	exceptions
	were
	filed
	to
	the 	hearing
officer's
	decision
	and
	the 	case
	was
	pending
	before 	the
	Board
for
	a
	final
	determination.
That
	agreement
	contained
	several
	articles
	which
	are
relevant
	to
	the
	issues
	now
	being
	raised
	by
	this
	case.
Article
	IV, 	which
	concerned
	association
	rights, 	stated
	in
pertinent 	part:
A.
	Association
	Use
	of
	District
Facilities:	
The
	Association
	and
	its
members 	may
	utilize 	District
	school
buildings
	and
	facilities.
2. 	During
	operation 	hours, 	the
District
	agrees
	upon
	24-hour 	advance
request
	and
	approval 	of 	the
	site
manager
	to 	grant 	the 	Association 	access
to 	lounges,
	faculty 	dining
	rooms,
	or
other 	designated 	locations
	for 	the
transaction
	of 	Association 	businesswith 	employees 	on
	non-duty 	time 	as
provided 	in 	Section
	C.
. 	. . 	. 	. . 	. . 	. 	. 	. . . 	. 	. 	. 	. .
B.
	Association
	Communications
. 	. 	. 	. . . . . 	. 	. 	. 	. 	. . 	. 	. . 	. 	. 	.
3.
	FACILITY MAILBOXES. 	The
	District
authorizes 	the 	Association 	to 	use
19

school
	and
	other
	District
	facility
mailboxes.
	Distribution
	of
communications
	shall
	be 	by
	employees 	on
non-duty 	time
	or	
by	
non-site
representatives
	of 	the 	Association.
c.
	Association Business:	
The
	Associationagrees
	that
	its
	authorized
	~taff
	and
building
	representatives
	shall
	notconduct
	Association 	business
	with
employees
	during
	regular
	working
hours.
	It
	is
	agreed
	that
	non-duty
times
	are
	as
	follows: 	before
	and
	after
the
	scheduled
	workday
	of
	each 	employee,
the
	nutrition
	break,
	and
	lunch
	period.
In
	no
	event
	shall
	any
	representative
	or
unit
	member
	interrupt
	or
	interfere
	in
any 	way
	with
	normal 	work.
	Any
exceptions
	must 	be
	approved	
by 	the
appropriate 	division
	assistant
superintendent.
	It
	is
	further
	agreed
that
	this
	section
	of 	the
	contract
	shall
be 	amended
	to
	conform
	to
	the
	Public
Employment
	Relations 	Board's
	final
decision
	on
	this
	matter.
The
	last
	sentence 	in
	Article
	IV,
	paragraph
	C,
	above
memorializes 	the
	parties'
	acknowledgment
	that
	the 	challenges 	to
the
	Distrist's
	access
	regulations 	regarding
	this
	matter
	were
before 	the
	PERB. 	The
	language
	of
	this
	provision 	expresses
their 	intent 	to
	make
	changes
	in
	this 	section 	in
	accord 	with 	the
Board's
	final
	determination
	on
	this
	matter.
Article
	V
of
	that
	CBA
	covers 	days
	and
	hours
	of
	employment
for
	unit
	members.
	Article
	V,
	section
	A,
	contains 	specific
provisions 	regarding 	the
	workday
	as
	set 	forth
	below:
A. 	Workday
1.	
It
	is
	agreed
	that
	the 	professional 	dutiesof 	employees
	require 	both
	on-site
	and
off-site
	hours 	of 	work,
	that 	the 	varying
nature 	of 	such 	professional 	duties
	may
not 	lend
	itself 	to
	a
	total
	maximum
	dailywork 	time 	of 	definite 	or 	uniform 	length,
20

and
	that
	such
	duties
	are
	normally
expected
	to
	involve
	no
	fewer
	than
	eight
(8)
	hours
	of
	total 	effort
	each
	workday
for
	both 	classroom
	and
	non-classroom
employees.
2.	
The
	regular
	school
	day
	for
	elementary
school
	teachers
	is
	as 	follows: 	In 	the
elementary 	schools
	teachers
	shall
	report
for 	duty 	not
	later
	than
	twenty
	(20)
minutes
	before
	the 	opening
	of
	class.
They
	shall
	remain 	twenty
	(20)
	minutes
after
	the
	close 	of
	their
	last
	assigned
period 	of 	the
	day
	(except
	on Wednesdays
or
	Fridays--as
	agreed
	upon 	by
	each
	school
faculty),
	unless
	excused
	earlier
	orrequested
	to
	remain
	by
	the
	principal.
	On
Wednesday
	or 	Fridays 	teachers
	may
	leave
the
	building
	immediately
	upon
	the
	closeof 	the
	regular
	school
	day
	for
	pupils,
except
	that
	if 	district
	meetings
	are
scheduled
	on
	the
	early
	day, 	another
	daymay 	be
	designated.
	Teachers
	of
kindergarten
	and
	the
	first
	three
	grades
remain
	on
	duty 	as 	long 	as
	teachers 	of 	the
fourth
	through
	sixth
	grades, 	unless
excused
	earlier
	by
	the
	principal.
Teachers 	assigned
	to
	elementary 	school
libraries
	work 	a
	seven-hour 	day.
3.	
Junior
	and
	senior
	high 	school
	teachers
shall
	report
	for 	duty
	at 	least
	twenty
(20)
	minutes 	before 	the 	opening
	of 	the
first
	assigned
	class,
	conference
	period,or
	homeroom 	and
	shall
	check
	their
mailboxes
	daily
	before
	their
	first
assignments. 	Teachers 	remain
	at 	least
twenty
	(20)
	minutes
	after
	the
	close 	ofthe
	last
	assigned
	class
	or 	conference
period, 	except
	on 	Wednesdays 	when
	they
may
	leave 	the 	building
	immediately
	upon
the 	close 	of 	the
	last
	assigned
	class
	or
conference 	period, 	unless 	assigned 	to
	an
after-school 	duty.
	If 	District
	meetings
are 	scheduled
	on Wednesdays, 	another 	day,
preferably 	Friday,
	may 	be
	designated 	as
the 	early 	leaving 	day.
21

4. 	The 	on-site 	workday 	for 	other 	unit
members 	including 	nurses, 	secondary
school 	librarians, 	and 	program
facilitators 	shall 	be 	eight 	(8) 	hours 	per
day, 	exclusive 	of 	lunch. 	Occasional
modifications 	of 	the 	on-site 	work 	hours
may 	be 	requested 	by 	the 	employee 	and
approved 	by 	the 	site 	manager 	so 	as 	to
accommodate 	job 	responsibilities 	that
must 	be 	done 	outside 	of 	normal 	working
hours. 	Driving 	time 	between 	district
sites 	shall 	be 	included 	as 	part 	of 	the
normal 	working 	day, 	ex.elusive 	of 	the
duty-free 	lunch 	period.
5. 	Modification 	in 	the 	students' 	schedule
such 	as 	"minimum 	days" 	shall 	have 	no
effect 	on 	the 	unit 	member's 	workday 	as
described 	above, 	except 	for
Back-to-School 	Night 	in 	the 	fall 	and 	Open
House 	during 	one 	night 	of 	Public 	Schools
Week 	in 	the 	spring. 	Additional
exceptions 	may 	be 	approved 	by 	the
appropriate 	divisional 	assistant
superintendent.
6. 	It 	is 	recognized 	that 	in 	carrying 	out 	job
responsibilities, 	~ach 	employee 	shall
perform 	many 	duties 	and 	adjunct
responsibilities 	which 	occur 	outside 	of
the 	scheduled 	minimum 	on-site 	duty 	day.
Such 	duties 	may 	involve 	activities 	such
as 	supervision 	of 	pupils, 	sponsorship 	of
student 	activities, 	and 	participation 	in
school, 	districtwide, 	and
parent-community 	committees. 	Managers
shall 	seek 	volunteers 	for 	such 	duties 	and
adjunct 	responsibilities. 	However, 	in
the 	absence 	of 	volunteers, 	the 	managers
may 	assign 	unit 	members 	to 	meet 	the 	needs
of 	the 	school 	situation. 	The 	maximum
expectancy 	for 	any 	secondary 	school
teacher 	is 	eighty 	(80) 	minutes 	per 	week
for 	such 	duties 	and 	adjunct
responsibilities, 	exclusive 	of
faculty/department 	meetings. 	Because
school 	activities 	are 	not 	equally
distributed 	throughout 	the 	year, 	the
teacher's 	duties 	and 	adjunct
22

responsibilities 	may 	exceed 	eighty 	(80)
minutes 	during 	some 	weeks 	and 	be 	less 	in
others. 	The 	maximum 	expectancy 	shall 	be
twenty-four 	(24) 	hours 	in 	an 	eighteen
(18) 	week 	period.
7. 	All 	unit 	members 	shall 	be 	entitled 	to
the 	statutory 	minimum 	duty-free 	lunch
period 	thirty 	(30) 	minutes. 	Normally,
teachers 	can 	expect 	to 	have 	the 	same
length 	of 	lunch 	period 	as 	students
except 	that 	the 	site 	manager 	may 	assign
employees 	to 	supervisory 	duties 	during
the 	passing 	periods 	and/or 	to 	meet 	the
occasional 	needs 	of 	the 	school 	lunch
period 	situation.
8. 	The 	scheduled 	preparation 	period 	at 	the
secondary 	level 	is 	defined 	as 	paid
working 	time 	for 	the 	specific 	purposes
of 	preparing 	materials, 	conferring 	with
students, 	parents 	and 	administrators,
and 	other 	duties 	subject 	to 	assignment
by 	the 	principal. 	It 	may 	also, 	if
deemed 	necessary 	by 	the 	immediate 	site
manager, 	be 	used 	for 	providing
replacement 	services 	(class 	coverage)
for 	a 	temporarily 	absent 	unit 	member.
Replacement 	service 	may 	be 	required 	when
another 	teacher 	is 	absent, 	no 	substitute
teacher 	is 	immediately 	available, 	and,
in 	the 	judgment 	of 	the 	administrator, 	no
other 	certificated 	employee 	is
available. 	The 	site 	manager 	shall 	make
a 	reasonable 	effort 	to 	distribute 	these
occasional 	replacement 	assignments
equitably.
9. 	In 	the 	elementary 	school, 	limited
preparation 	time 	may 	be 	arranged 	at
individual 	school 	sites 	through 	staffing
patterns 	that 	a) 	are 	educationally
justifiable; 	b) 	do 	not 	reduce 	total
instruction 	time 	for 	students; 	c) 	are
developed 	jointly 	by 	the 	teaching 	staff
and 	the 	site 	manager, 	and 	d) 	are
approved 	by 	the 	Assistant
Superintendent, 	Elementary 	Division.
23

10.	
Employees
	who
	request
	a
	part-time
assignment
	shall
	have
	a 	minimum
	on-siteresponsibility
	exclusive 	of
	any
duty-free
	lunch
	period
	proportionate 	to
their
	contract
	assignment. 	Elementary
part-time
	teachers
	who
	teach
	half
	of 	the
normal
	instructional
	time
	shall
	have
	a
workday
	that 	is
	one-half
	the
	workday
	of
a
	full-time 	teacher.
	Secondary
part-time
	teachers
	who
	are 	assigned
	to
three
	(3)
	instructional
	periods
	shall
have
	a 	workday
	that
	is
	one-half
	the
workday
	of
	a
	full-time
	teacher; 	other
workdays
	shall
	be
	based
	upon
	the
principle 	that
	exclusive 	of
	the 	lunch
period, 	six
	(6)
	periods 	plus 	required
time
	before
	and
	after
	classes 	constitute
a
	full-time
	assignment
..
	Teachers
	who
work
	less
	than
	full-time
	shall
	not
	be
scheduled 	for
	a
	preparation
	period
	as
part
	of
	the
	workday. 	Employees
	who
	work
half-time
	or
	less 	shall
	be 	exempt 	from
all
	extra-duty
	responsibilities
	except
for 	faculty
	meetings
	which
	arecontiguous 	with 	the 	employee's
	workday
and
	annual
	PTA-open
	house
	activities.
11.	
The
	provisions 	of
	this
	section
	shall
	not
apply
	to 	teachers 	in 	the
	Outdoor
Education
	program.
Article
	XIV
	of 	the
	agreement
	contains 	the 	grievance
procedure. 	Section
	A,
	paragraph 	1, 	defines
	a
	grievance 	as:
A
claim
	by 	a
	grievant 	that
	he/she
	has 	been
adversely 	affected
	by 	an
	interpretation,application, 	or 	violation
	of 	the
	specificprovisions 	of
	this
	Agreement.
	Informally,
	a
grievance
	may 	be
	presented 	verbally;formally,
	it
	shall
	be
	presented 	in 	writing.
The
	grievance 	procedure 	includes
	an
	informal
	level
	which
enables
	a
	grievant, 	before
	filing
	a
	formal
	written 	grievance,
to 	attempt 	resolution
	through 	informal 	conference 	with 	the
	site
24

manager. 	The 	formal 	level 	of 	the 	procedure 	consists 	of 	four
steps. 	The 	procedure 	also 	makes 	provisions 	for 	the 	grievant 	to
be 	granted 	release 	time 	to 	process 	the 	grievance.11
In 	the 	spring 	of 	1980 	the 	parties 	commenced 	reopener
negotiations 	on 	certain 	items 	of 	the 	1979-81 	CBA. 	Those
negotiations 	extended 	into 	the 	fall 	of 	1980, 	culminating 	in 	a
ratified 	agreement 	in 	November 	1980.
This 	amendment 	to 	the 	CBA 	extended 	the 	contract 	term 	to
June 	30, 	1982. 	All 	provisions 	of 	1979-81 	CBA 	set 	forth 	above,
remained 	unchanged 	in 	the 	extended 	contract.
During 	the 	1980 	contractual 	negotiations, 	the 	parties 	again
went 	to 	impasse 	and 	had 	a 	PERE-appointed 	mediator 	assist
llArticle 	XIV, 	section 	G, 	paragraph 	4, 	states:
RELEASED 	TIME. 	a) 	An 	employee 	with 	a 	grievance
shall 	be 	granted 	reasonable 	released 	time 	to 	process
the 	grievance; 	b) 	the 	Association 	may, 	upon 	request 	of
the 	grievant, 	have 	released 	time 	for 	an 	authorized
representative 	to 	participate 	in 	a 	grievance
conference; 	c) 	the 	Association 	shall 	designate 	in
writing 	to 	the 	Employee 	Relations 	Office 	the 	names 	of
unit 	members 	who 	are 	authorized 	as 	grievance
representatives 	prior 	to 	the 	District's 	approval 	of
released 	time; 	d) 	except 	for 	the 	informal 	conference,
an 	employee 	must 	request 	approval 	from 	the 	site
manager 	at 	least 	twenty-four 	(24) 	hours 	prior 	to 	being
released 	from 	duties 	to 	participate 	as 	a 	grievant 	or
representative 	in 	a 	grievance 	conference; 	e) 	released
time 	shall 	be 	limited 	to 	one 	Association
representative 	per 	grievance 	conference; 	f) 	released
time 	for 	processing 	grievances 	at 	the 	site 	level 	shall
be 	at 	times 	that 	do 	not 	disrupt 	direct 	service 	to
students.
25

them.
	While
	these
	negotiations
	were
	underway,
	the
	Board
	issued
its
	decision
	in
	Long
	Beach
	Unified
	School
	District,
	supra
	on
May
	28,
	1980.
As 	was
	stated
	above,
	sometime
	in
	July
	or
	August
	of
	1980
Ms. 	Guy
	contacted
	Mr. 	Marmion
	about
	their
	having
	a
	meeting
	to
discuss
	the
	decision
	as
	provided
	for
	by
	Article
	IV,
	section
	C,
of
	the
	CBA.
	However,
	the
	parties
	did
	not
	actually
	meet
	until
after
	the
	District
	had
	completed
	revision
	of 	the
	1976
regulations
	and
	reissued
	them
	effective
	September
	15, 	1980.
Association
	access
	was
	not
	one
	of
	the
	subjects
	of 	the
	1980
negotiations.
	Ms. 	Guy
	testified
	that
	TALB
	did 	not 	place
	the
item 	on
	the
	table
	because
	it
	was
	not
	one
	of
	the
	items
	which
	was
subject 	to
	the 	reopener.
Ms. 	Guy 	was 	TALB's
	chief 	negotiator
	for
	all
	three
	CBA's
negotiated
	by
	the
	parties 	at
	the
	time
	of 	the 	hearing.
	Marmion
was
	the
	District's
	chief 	negotiator
	until
	October
	1,
	1980,
	when
Collins 	replaced
	him. 	However,
	Collins
	was
	present 	during 	the
course 	of 	negotiations 	for
	all
	three
	agreements 	as 	Marmion's
assistant 	until
	his
	appointment 	as
	employee
	relations
coordinator.
D.
	Teachers
	Use
	of
	Time
	During 	20-Minute
	Periods
	and
Conference/Preparation 	Periods
Since
	at 	least
	1943
	the
	District
	has 	maintained 	the
practice 	of 	requiring 	teachers 	to 	report 	to 	duty
	at 	least
20
	minutes 	prior 	to 	the 	beginning 	of 	the
	first
	assigned
	class,
26

conference 	period, 	or 	homeroom 	and 	remain 	on 	duty 	at 	least
20 	minutes 	after 	the 	close 	of 	the 	last 	assigned 	class 	or
conference 	period 	of 	the 	day 	(except 	on 	Wednesdays 	or 	Fridays).
Traditionally, 	Wednesdays 	and 	Fridays 	are 	known 	as 	the 	"early
leaving 	days." 	On 	either 	of 	those 	days, 	as 	agreed 	upon 	by 	each
school 	faculty, 	the 	teachers 	may 	leave 	at 	the 	close 	of 	the 	last
assigned 	class 	or 	conference 	period, 	unless 	given-an 	after
school 	assignment.
The 	District 	relies 	on 	State 	Department 	of 	Education
regulations 	as 	the 	source 	of 	its 	authority 	for 	requiring
teachers 	to 	be 	on 	duty 	for 	the 	two 	20-minute 	periods 	each
aav.12
Since 	the 	mid-1940's, 	the 	District 	has 	also 	maintained 	the
practice 	of 	designating 	one 	non-teaching 	period 	per 	day 	as 	a
conference 	or 	preparation 	period 	for 	secondary 	level 	teachers.
The 	conference/preparation 	period, 	commonly 	referred 	to 	as
the 	"conference 	period," 	is 	time 	during 	the 	instructional 	day
12Title 	5, 	Calif. 	Admin. 	Code, 	section 	5570 	states:
Unless 	otherwise 	provided 	by 	rule 	of 	the
governing 	board 	of 	the 	school 	district,
teachers 	are 	required 	to 	be 	present 	at 	their
respective 	rooms, 	and 	to 	open 	them 	for
admission 	of 	the 	pupils, 	not 	less 	than 	30
minutes 	before 	the 	time 	prescribed 	for
commencing 	school.
All 	teachers 	shall 	observe 	punctually 	the
hours 	fixed 	by 	regulation 	of 	the 	governing
board 	of 	the 	school 	district 	for 	opening 	and
closing 	school.
27

to 	be 	used 	for 	class 	preparation 	and 	other 	classroom-related
responsibilities, 	consultation 	with 	parents 	or 	other 	school
personnel, 	school 	business 	meetings, 	and 	specific 	supervisory
duties 	as 	assigned 	by 	the 	principal 	or 	site 	manager.
For 	example, 	a 	teacher 	may 	be 	assigned 	to 	provide 	replacement
services 	(class 	coverage) 	for 	a 	temporarily 	absent 	teacher
where 	no 	substitute 	teacher 	is 	immediately 	available.
Faculty 	at 	some 	of 	the 	elementary 	schools 	have 	agreed 	to
work 	extra 	minutes 	during 	the 	regular 	instructional 	period
during 	the 	week 	in 	order 	to 	have 	a 	block 	of 	non-classroom 	time
set 	aside 	once 	each 	week 	for 	preparation 	time. 	The 	extent 	to
which 	elementary 	schools 	throughout 	the 	District 	have 	scheduled
weekly 	preparation 	periods 	is 	unknown. 	However, 	at 	least 	two
witnesses 	employed 	at 	different 	elementary 	school 	sites
testified 	that 	they 	have 	such 	time 	set 	aside 	in 	their 	programs.
In 	1978 	when 	the 	parties 	negotiated 	the 	first 	CBA, 	the
District 	had 	a 	set 	of 	regulations 	entitled 	"Regulations 	of 	the
Board 	of 	Education" 	which 	contained 	among 	other 	things,
specific 	provisions 	regarding 	the 	workday 	of 	certificated
personnel. 	Those 	provisions 	required 	all 	classroom 	teachers 	to
report 	to 	duty 	at 	least 	20 	minutes 	before 	their 	first
assignment. 	A copy 	of 	these 	regulations 	is 	issued 	to 	every
teacher 	at 	the 	beginning 	of 	the 	person's 	employment 	with 	the
District.
28

In
	1981
	the
	above-mentioned
	regulations
	were
	revised.
	The
revision
	contained
	no
	reference
	to
	the
	workday
	or
	hours
	of
teachers,
	but 	did 	include
	a
	detailed
	listing
	of
	teachers'
duties.
Article
	V,
	section
	A,
	paragraphs
	2 	and 	313	
of
	the
	current
CBA
	refer
	to
	the
	20-minute
	periods 	as 	"duty
	time."
	However,
these 	provisions 	contain
	no
	listing
	of
	specific
	duties
	or
assignments
	to
	be
	performed
	during
	this
	time
	at
	the 	elementary
level.
	At
	the
	secondary
	level,
	the
	contract
	specifically
requires 	junior
	high
	and
	senior
	high 	school 	teachers 	to
	check
their
	mailboxes
	daily
	before
	their
	first
	assignment.
Both
	parties
	presented
	a 	number
	of 	witnesses
	who
	testified
about
	their
	normal
	activities
	during 	the
	two
	20-minute
periods.
	The
	evidence
	is
	uncontradicted
	that,
	as
	a
	general
rule,
	teachers
	at
	both
	the 	elementary
	and
	secondary
	level
engage
	in
	some
	type 	of
	professional 	preparation 	in 	the 	time
both
	before
	and
	after
	the
	instructional
	day.
	However,
	the
actual
	use
	of 	these
	20-minute 	duty 	times,
	varies
	with 	the
individual 	teacher 	according 	to 	his/her 	particular
	school
	site
and
	the 	grade
	level 	taught.
In 	the
	mornings 	many
	teachers 	arrive
	on
	the
	campus
	as
	much
as 	30-45 	minutes
	prior 	to 	the 	beginning 	of 	the 	20-minute 	period
in 	order 	to
	complete
	specific 	preparation
	activities
	which 	they
deem
	to
	be
	important.
13see
	full 	text, 	supra 	at 	p. 	21.
29

The 	activities 	performed 	are 	generally 	left 	to 	the 	discretion
of 	the 	individual 	teacher. 	Examples 	of 	these 	activities
include 	opening 	and 	preparing 	the 	classroom 	for 	the 	arrival 	of
the 	students, 	checking 	on 	equipment 	or 	supplies 	to 	be 	used
during 	classroom 	instruction, 	duplicating 	written 	materials,
writing 	assignments 	on 	the 	classroom 	blackboards, 	consulting
with 	the 	school 	nurse 	or 	other 	support 	personnel, 	and
distributing 	materials 	on 	the 	pupils' 	desk. 	If 	assigned 	by 	the
principal, 	some 	teachers 	at 	the 	secondary 	level 	must 	supervise
the 	halls 	during 	the 	students' 	passing 	period 	just 	prior 	to 	the
beginning 	of 	the 	first 	period. 	At 	the 	elementary 	school 	level,
the 	teachers 	are 	assigned 	15-minute 	yard 	duty 	in 	the 	mornings
on 	a 	rotating 	basis, 	the 	frequency 	of 	which 	depends 	on 	the
number 	of 	teachers 	at 	a 	particular 	site. 	Once 	a 	month, 	staff
meetings 	are 	held, 	usually 	in 	the 	morning 	prior 	to 	the
beginning 	of 	the 	20-minute 	period, 	and 	may 	extend 	into 	part 	of
the 	20-minute 	duty 	time. 	Faculty 	committee 	meetings 	are
generally 	held 	in 	the 	afternoon, 	starting 	at 	the 	beginning 	of
the 	20-minute 	period. 	Teacher 	participation 	in 	faculty
committees 	is 	usually 	voluntary.
At 	each 	school 	site 	there 	is 	an 	area 	which 	is 	designated 	as
the 	teachers' 	lounge. 	This 	lounge 	is 	utilized 	by 	the 	teachers
for 	rest 	and 	relaxation 	and, 	in 	some 	instances, 	for 	lunch
breaks. 	The 	actual 	size 	and 	number 	of 	lounges 	per 	school 	site
and 	type 	of 	equipment 	kept 	in 	these 	areas 	varies 	considerably
30

throughout 	the 	District. 	In 	some 	schools, 	aside 	from 	the
furniture, 	magazines, 	etc., 	for 	the 	teachers 	to 	utilize 	during
their 	break 	time, 	the 	lounges 	contain 	equipment 	such 	as
duplicating 	machines 	which 	the 	teachers 	use 	for 	class 	work.
Occasionally, 	some 	lounges 	are 	used 	as 	a 	work 	area 	by 	a 	teacher
during 	the 	conference/preparation 	period 	if 	that 	person's
classroom 	is 	in 	use 	during 	this 	time. 	The 	classroom 	teachers
do 	not 	have 	private 	offices. 	Aside 	from 	the 	faculty 	dining
rooms, 	the 	lounges 	are 	generally 	the 	only 	other 	areas 	on 	the
campus 	where 	teachers 	may 	smoke 	and 	have 	coffee 	or 	other
refreshments.
Testimony 	presented 	by 	various 	witnesses 	for 	both 	sides
exemplified 	how 	teachers' 	activities 	during 	a 	"typical 	day"
vary. 	For 	example 	at 	the 	elementary 	level, 	Violet Moody, 	a
third 	grade 	teacher 	at 	Jane 	Addams 	School 	and 	a 	witness 	for 	the
District, 	is 	involved 	in 	"team 	teaching" 	with 	five 	other
teachers 	for 	the 	reading 	classes 	at 	her 	school 	site. 	This
program 	requires 	a 	great 	deal 	of 	coordination 	between 	the
teaching 	staff 	and 	their 	assistants. 	This 	school 	also 	has
several 	specially-funded 	state 	and 	federal 	programs 	because 	of
the 	very 	diverse 	student 	population. 	Thus 	most 	of 	her 	time
during 	the 	20-minute 	periods 	is 	taken 	up 	by 	the 	consultation
and 	record-keeping 	activities 	required 	for 	these 	programs. 	At
her 	school 	the 	teachers 	do 	not 	have 	a 	weekly 	preparation
period. 	Their 	early-leaving 	day 	is 	Wednesday. 	Occasionally,
31

faculty
	meetings
	have
	been
	scheduled
	on
	the
	early-leaving
	day
and
	the
	time
	consumed 	by
	these
	meetings
	is
	not 	given
	back
	to
the
	teachers.
Similarly,
	Loretta 	Foster,
	a
	bilingual
	kindergarten 	teacher
at
	John
	Muir
	School
	and 	a
	witness
	for
	TALE,
	spends
approximately
	95
	percent 	of
	her 	non-classroom 	duty
	time
	doing
class
	preparation
	work.
	At
	her
	school,
	the
	kindergarten
teachers
	do 	have
	a
	preparation
	period 	of
	approximately
	70
minutes
	in 	the 	afternoon
	which
	they
	utilize
	preparing
	lessons
for
	the 	next
	day's
	classes.
	Because
	the 	lessons
	must
	be
prepared 	in
	two
	languages,
	a
	great
	deal 	of
	time
	is
	required 	to
accomplish
	this
	task.
Three
	of 	the 	witnesses 	presented
	by
	the
	parties
	were
department 	heads.
	As
	defined
	by
	the
	District's
	job
descriptions,
	department 	heads
	have
	extra 	duties
	for
	which
	they
receive 	extra
	compensation. 	Jo
	Ann
	Powell,
	a
	TALB
	witness,
	had
a
	special
	assignment 	as 	the
	yearbook
	advisor
	at
	Jordan
	High
School.
	The
	evidence 	presented
	by
	all
	these 	witnesses
indicates 	that
	each
	of
	them
	spends 	time 	during 	both 	20-minute
periods
	and
	their
	conference 	periods 	attending 	to
	many
	of 	the
extra 	duties 	required 	of 	department 	heads 	or 	teachers 	with
special
	assignments. 	In 	addition,
	on 	a
	regular 	basis, 	these
individuals
	must 	have 	meetings 	with 	the 	school
	principals
	and
their 	respective 	departmental
	staff,
	or 	the 	students 	involved
in 	projects
	such 	as 	the 	yearbook. 	These 	meetings 	are 	in
32.

addition
	to
	the
	regular
	monthly
	site 	staff
	and
	committee
meetings
	referred
	to
	above.
The
	use
	of 	the
	20-minute
	periods
	after
	the
	last
	assigned
instructional
	period
	also 	varies
	somewhat.
	Some
	teachers
	use
this
	time
	to
	meet
	with
	students
	who
	have
	special
	instructional
needs,
	do
	their
	blackboard
	work
	for 	the 	next
	day's
	class,
	go
	to
the 	mailbox,
	go
	to
	the
	teachers'
	lounge
	and
	relax
	and
	converse
with
	other 	teachers, 	attend
	committee
	meetings,
	meet
	with
parents,
	and
	secure 	the 	classrooms 	or
	remove
	their 	materials
from
	the
	classrooms
	if
	the 	classroom
	is
	to
	be
	used
	for
	other
activities 	at
	the
	end
	of
	the
	regular
	day.
	At
	the
	junior
	high
level,
	some
	six
	or
	seven
	schools
	have
	a
	daily 	after
	school
tardy/detention
	program
	for 	pupils
	which
	lasts
	for
	10-15
minutes
	of 	the
	20-minute
	period.
	The
	teachers 	assigned
	to
conduct 	the
	detention
	must 	remain
	in 	the 	classroom
	to 	supervise
the
	detainees.
	The
	frequency
	of
	this
	assignment 	depends 	on
	the
number
	of 	pupils
	who
	must 	be
	detained.
If
	a
	teacher
	elects 	to
	take 	unauthorized 	leave
	from
	the
campus
	during 	the 	20-minute
	period, 	the
	District 	practice
	has
been
	to
	charge
	that 	individual 	with 	leave
	time
	pursuant 	to 	the
leave 	provisions 	of 	the
	CBA.
The
	scheduled 	conference/preparation 	period
	is
	defined
	by
Article
	V,
	section
	A,
	paragraphs
	8 	and 	9
	of 	the
	CBA14	
as 	paid
working 	time 	for 	bargaining 	unit
	members.
14see 	full 	text 	of 	provisions, 	supra 	at 	p. 	23.
33

The
	use
	of
	the 	conference
	periods
	varies
	according
	to
	the
needs
	of
	a
	particular
	teacher.
	But
	generally,
	it
	was
acknowledged
	by
	all
	witnesses
	that
	this
	time
	is
	considered
	to
be
	working 	time
	to
	be
	used
	for
	such
	activities
	as 	paperwork,
conferencing
	with
	pupils
	or
	parents,
	conferencing
	with
	resource
personnel,
	going
	to
	the
	library,
	ordering 	of
	supplies,
	checking
on
	equipment,
	etc.
	These
	are
	all
	activities
	related
	to 	the
instructional
	programs.
	The
	time
	is
	also
	used
	for
	such
assigned
	duties
	as 	replacement
	services,
	as 	mentioned
	above,
attendance
	at
	faculty
	meetings
	and
	participation
	in 	conferences
related
	to 	grievance
	processing.
	Release
	time
	is 	available
	to
a
	teacher
	for
	this 	activity
	in
	accord 	with
	provisions 	of 	the
CBA.15
Those
	teachers,
	who 	do
	not
	use
	the 	conference 	period 	for
purposes 	described
	above
	or 	take 	unauthorized 	leave
	from
	the
campus
	during
	this
	time,
	have 	been
	disciplined
	by
	their
prfncipals
	and/or 	charged 	with 	leave
	time 	as 	provided 	for
	by
the	
CBA.
E. 	The
	District's
	Policy
	Regarding
	Use
	of
	its 	Facilities
The 	use
	of
	District 	facilities
	for 	meetings, 	other 	than
classroom 	teaching,
	is
	commonplace. 	For 	example,
	various
extracurricular 	activities
	occur 	before
	and
	after
	school, 	such
as
	student 	club 	meetings, 	special 	projects, 	the 	yearbook 	and
tutoring.
	Also 	the 	academic 	departments, 	at
	a
	school
	site
	have
15See
	full 	text 	of 	this 	provision, 	§Upra
	at 	p. 	25.
34

various 	meetings 	throughout 	the 	year 	which 	require 	the 	use 	of
rooms 	other 	than 	for 	classroom 	instruction.
Pursuant 	to 	the 	Civic 	Center 	Act 	(California 	Education 	Code
sections 	40046-40058) 	the 	District 	is 	required 	to 	make 	its
facilities 	available 	for 	use 	by 	community 	and 	civic 	groups. 	In
furtherance 	of 	this 	obligation 	the 	District 	has 	established
various 	policies 	regarding 	the 	allocation 	of 	its 	facilities 	for
civic 	activities. 	These 	policies 	require 	that 	groups 	desiring
to 	use 	District 	facilities 	must 	submit 	applications 	for 	permits
at 	least 	two 	weeks 	prior 	to 	the 	date 	of 	the 	event 	for 	which 	the
District 	site 	is 	to 	be 	required.
Under 	the 	Civic 	Center 	Act 	organizations 	such 	as 	the 	Girl
Scouts, 	Boy 	Scouts, 	the 	Parent-Teachers 	Association 	and 	other
service 	and 	community-oriented 	groups 	use 	the 	District's
facilities 	for 	their 	meetings 	and 	activities.
Additionally, 	the 	District 	has 	an 	adult 	school 	population
of 	3,000 	students 	who 	use 	District 	sites 	for 	evening 	school
classes.
Article 	IV 	of 	the 	CBA 	contains 	provisions 	regarding 	the
Association's 	use 	of 	District 	facilities. 	Section 	A, 	paragraph
216 	of 	that 	Article 	provides 	for 	24-hour 	advance 	request 	by
the 	Association 	for 	access 	to 	lounges, 	faculty 	dining 	rooms 	or
designated 	locations 	for 	the 	transaction 	of 	Association
16see 	full 	text 	of 	this 	provision, 	supra 	at 	p. 	19.
35

business.
	The
	District's
	access
	regulations
	set
	forth
	above,
also 	require
	one-day
	advance
	arrangement
	where 	a
	large
	group
meeting
	is
	to
	be
	held.17	
In
	practice
	the
	District
	only
requires
	TALB
	to
	submit
	the
	advance
	request
	when
	there
	is
	a
large
	group
	meeting,
	whether 	formal
	or 	informal. 	Informal
meetings
	or
	visitations
	by
	TALB
	with
	small
	groups
	of
	employees
do
	not 	require
	a
	24-hour
	advance
	room
	request
	for 	access
	to
	the
lounges,
	etc.
F.
	TALB's
	Visitations
	to
	School
	Sites
The
	TALB
	schedule
	of
	school
	site
	visitations 	is
	developed
by
	its
	office
	personnel
	each
	school 	year
	at
	the 	beginning
	of
the
	fall
	and
	the 	spring 	semesters. 	This 	schedule
	is
	sent
	to
the
	District's
	employee
	relations 	office
	and
	to
	each
	TALB
school
	site
	faculty 	representative 	at
	the 	beginning 	of 	the
semester.
	Approximately
	1
	1/2
	weeks
	prior
	to
	the 	scheduled
visit,
	the
	TALB
	office
	sends
	a
	reminder
	to
	the
	site
	faculty
representative 	in 	order
	that
	room
	arrangements,
	if
	needed, 	can
be 	made.
	Room
	arrangements 	are
	made
	with 	the
	site
	manager.
That
	notice 	is
	also
	posted
	to
	let
	the 	teachers
	at
	a
	facility
know
	that
	a
	visit 	is
	scheduled.
During 	the
	fall
	semesters 	of 	the 	1980-81 	and 	1982-83
	school
years, 	the
	TALB
	visitation
	schedules
	were
	set
	up 	on 	a
	rotation
basis.
	During 	the 	1980-81 	school 	year, 	the
	visitations
	were
17see
	full 	text 	of 	this 	provision, 	supra 	at 	p. 	14.
36

conducted
	by
	Guy,
	Welborn 	and 	Goddard,
	who
	was
	then
	the
	TALB
president
	and 	on
	leave 	of
	absence.
	The
	visitations 	at
	the
elementary 	schools
	were
	scheduled
	for
	mornings,
	usually
beginning
	at
	7:30 	a.m.
	Visitations
	at
	the 	secondary
	schools
were
	scheduled 	during
	lunch
	time.
	Room
	arrangements
	for
	the
meetings
	are 	generally
	left
	up
	to
	the
	site
	representative,
depending
	on
	the
	type
	of
	meeting
	planned,
	i.e.,
	a
	formal
structured
	meeting
	or
	an
	informal
	visitation.
	Occasionally,
the 	meeting 	times
	are
	modified
	if
	the
	faculty, 	at
	a
	particular
site,
	prefer
	a
	time
	other
	than
	that
	scheduled
	by
	the
Association.
TALB
	representatives 	also
	have
	meetings 	with
	individual
teachers
	which,
	on
	occasion,
	have 	been
	held 	during 	the
scheduled 	conference 	periods 	in 	the
	teacher's
	classroom 	or 	the
faculty
	lounge.
	Welborn
	testified
	that 	at
	times
	he
	has
	met
with
	teachers 	regarding 	grievance 	matters 	during
	their
conference 	periods 	without 	obtaining 	authorization
	from
	the
site
	principal.
	He
	viewed
	the
	investigation
	of 	possible
grievances 	as
	part
	of 	the 	grievance 	process 	permitted
	by
	the
CEA.
Upon
	arrival 	at
	a
	local
	school
	site,
	the 	general
	practice
of
	TALB
	representatives 	is
	to
	go
	to 	the
	principal's 	office
	and
sign 	in
	on
	the 	log 	for
	employee
	organization
	visits.
	However,
both
	Guy 	and 	Welborn
	admitted 	that 	they 	have
	visited 	individual
37

teachers
	at
	a
	site
	without
	first
	signing
	in
	at
	the
	principal's
office.
	Guy
	testified
	that
	if
	the
	meeting
	was
	related
	to
	a
possible
	grievance
	matter,
	she
	considered 	the
	meeting
	to
	be
"confidential"
	and
	therefore,
	it
	was
	not
	entirely
	necessary
	to
sign
	in.
	She
	further
	testified
	that
	generally
	when
	she
	has
visited
	individual 	teachers
	without
	first
	going
	to
	the
principal's
	office
	to 	sign
	in,
	the
	visitations
	were
	to
	drop
	off
TALB
	materials
	such
	as
	membership
	applications,
	etc.
During
	the
	1980-81
	school
	year,
	a
	very 	high
	percentage
	of
the
	morning
	visitations
	which
	~ere 	scheduled
	to
	begin
	at
7:30 	a.m. 	extended
	into
	the
	20-minute
	period
	by
	as
	much
	as 	the
entire
	20
	minutes.
	The
	use
	of 	the
	entire
	period 	during
	a
	visit
has
	occurred
	when
	discussion
	ensued 	between 	one
	or
	two
individual 	teachers
	and
	the
	TALB
	representative.
	TALB
representatives
	testified
	that
	it
	had 	been
	their
	observation
that
	when 	a
	teacher
	had 	a
	specific
	assignment
	or
	a
	duty
	during
the 	20-minute
	period, 	that
	person 	simply
	left
	at
	the
appropriate
	time
	during 	the
	visitation.
Visitations 	at
	the 	secondary 	schools 	during 	the 	lunch
periods
	(where
	the 	schools
	have 	two
	lunch 	periods)
	had
	at
	times
extended
	past 	the 	lunch 	period
	and
	into
	the 	conference 	period
if 	that
	period 	occurred
	immmediately
	after
	the 	duty-free 	lunch
period.
During 	the 	1980-81 	school 	year, 	the 	majority 	of 	the
	TALB
38

visitations 	or 	meetings 	occurred 	either 	in 	the 	faculty 	lounges
or 	the 	teachers' 	dining 	rooms.
During 	their 	testimony 	both 	Guy 	and 	Goddard 	admitted 	that
TALB 	could 	schedule 	more 	afternoon 	meetings, 	especially 	on 	the
early 	leaving 	days. 	However, 	as 	a 	general 	practice, 	the
Association 	had 	not 	done 	so 	because 	of 	a 	fear 	of 	conflict 	with
District 	business 	meetings. 	Also 	many 	teachers 	had 	personal
matters 	which 	they 	preferred 	to 	take 	care 	of, 	particularly, 	on
Friday 	afternoons 	when 	that 	day 	was 	the 	early 	leaving 	day.
These 	factors 	made 	late 	afternoon 	meeting 	times 	less
desirable.
The 	District 	has 	a 	policy 	which 	prohibits 	school 	district
business 	meetings 	on 	the 	early-leaving 	days 	unless 	the 	meetings
have 	been 	approved 	by 	the 	District 	administration 	or 	consented
to 	by 	the 	teachers 	at 	the 	facility. 	If 	the 	early-leaving 	day
is 	used 	for 	a 	school 	business 	meeting, 	the 	teachers 	are 	to
receive 	another 	day 	as 	an 	early-leaving 	day. 	Goddard 	testified
that 	he 	believes 	the 	District 	pretty much 	adheres 	to 	this
policy~ -- 	---
No 	evidence 	was 	presented 	that 	a TALB 	meeting 	which 	was
scheduled 	for 	an 	afternoon 	following 	the 	20-minute 	period 	had
ever 	been 	preempted 	by 	a 	District 	business 	meeting 	scheduled 	at
the 	same 	time.
39

G. 	The 	District's 	Application 	of 	its 	Revised 	Access
Regulations 	to TALB's 	On-Campus 	Activities
In 	the 	fall 	of 	1980 	the 	District 	began 	to 	actively 	enforce
its 	amended 	access 	regulations 	to 	various 	TALB 	on-campus
activities. 	In 	conjunction 	with 	the 	reissuance 	of 	these 	rules,
the 	District 	administration 	conducted 	in-service 	meetings 	with
its 	site 	managers, 	reviewing 	with 	them 	the 	administration's
interpretation 	of 	the 	regulations 	and 	related 	contract
provisions. 	A few 	instances 	where 	enforcement 	of 	the
regulations 	occurred 	showed 	inconsistencies 	in 	the 	way 	they
were 	interpreted 	at 	the 	school 	site 	level.
The 	first 	example 	concerns 	an 	encounter 	between 	Judith
Powell, 	a 	TALB 	faculty 	representative 	at 	Jordan 	High 	School 	and
former 	TALB 	president, 	and 	the 	Jordan 	principal,
Joseph 	L. 	McCleary. 	This 	encounter 	ocicurred 	entirely 	through
the 	exchange 	of 	a 	series 	of 	memos 	over 	a 	two-day 	period. 	On
October 	8, 	1980, 	Powell 	distributed 	a 	memo 	to 	the 	Jordan
faculty 	announcing 	that 	a 	site 	meeting 	would 	be 	held 	on
October 	9 	at 	3:05 	p.m. 	in 	room 	855 	(which 	was 	her 	regular
classroom) 	to 	give 	an 	update 	on 	the 	status 	of 	bargaining
between TALB 	and 	the 	District. 	On 	that 	same 	date, 	McCleary
sent 	Powell 	a 	memo 	in 	response 	to 	her 	memo 	indicating 	that, 	if
carried 	out, 	the 	meeting 	scheduled 	for 	October 	9 	"would 	be 	a
violation 	of 	the 	contract 	and 	District 	regulations." 	He 	stated
that 	a 	site 	meeting 	at 	3:05 	p.m. 	would 	include 	"duty 	time" 	for
40

nearly
	all
	teachers,
	nurses
	and
	librarians
	at
	Jordan
	and
	that
their 	participation
	in
	a
	meeting
	during 	duty
	time
	would
	be
	a
contract 	violation.
	His
	memo
	cited 	Article
	V,
	section
	A,
paragraph 	3,
	of
	the
	CBA
	as
	support 	for
	this
	statement.
McCleary
	also
	stated 	that
	the
	use
	of
	school
	facilities
	for
	a
formal 	meeting
	required
	advance
	approval
	by
	the
	principal;
	and
as
	of
	the
	time
	of
	his
	memo, 	no
	such
	request
	had
	been
	submitted.
The
	next
	morning
	at
	7:15 	a.m. 	Powell 	responded
	to
McCleary's
	memo
	with 	another
	memo
	which
	included
	a
	request 	for
use
	of
	her 	classroom
	and
	indicated
	that
	the
	meeting
	would
	still
be
	held
	at
	3:05
	p.m. 	Powell
	stated 	that
	in
	her 	opinion
	the
District's
	regulations 	prohibiting
	meetings 	during 	the
20-minute
	periods
	was
	not 	in
	compliance 	with
	PERB
	Decision
No.
	130.
	Later 	in 	the
	day,
	McCleary
	sent
	Powell 	another
	memo
granting
	her
	request 	for 	the
	use
	of
	her 	classroom 	for 	the
	site
meeting
	and
	indicating 	that
	the 	time
	of 	the
	meeting
	was
	to
	be
no
	earlier
	than 	3:20 	p.m.
	He
	concluded
	his
	memo
	with
	the
following 	admonition:
I
	encourage
	you
	not 	to
	mislead
	teachers 	into
a
	violation
	of
	their 	contract
	and
	Districtregulations
	which 	have 	been
	revised
specifically
	in 	response 	to
	a
	recent
	PERB
Decision
	and
	posted 	as 	required 	as 	well 	as
furnished 	to
	employee
	associations.
Later 	that
	same 	day 	(October
	9),
	Powell
	distributed
	another
memo
	to 	the 	Jordan 	faculty 	stating 	that
	because 	of 	the
41

disagreement 	that 	had 	arisen 	regarding 	the 	time 	set 	for 	the
meeting, 	TALB 	intended 	to 	file 	a 	grievance 	or 	an 	unfair
practice 	charge 	against 	the 	District.
At 	the 	hearing 	Powell 	admitted 	that 	she 	knew 	that 	she 	was
supposed 	to 	request 	a 	room 	a 	day 	in 	advance 	of 	the 	meeting.
Although 	she 	did 	not 	agree 	with 	the 	rule 	she 	actually 	forgot
about 	submitting 	the 	request 	before 	scheduling 	the 	meeting 	for
October 	9 	because 	she 	had 	never 	requested 	the 	use 	of 	her 	own
room 	before.
In 	late 	October 	1980 	another 	incident 	involved 	Guy 	and
Martha 	Dauway, 	principal 	of 	Stevenson 	Elementary 	School. 	The
facts 	surrounding 	this 	incident 	are 	in 	dispute. 	Guy 	testified
that 	there 	was 	a 	rather 	heated 	verbal 	exchange 	between 	her 	and
Dauway 	over 	Dauway's 	denial 	to 	her 	of 	access 	to 	the 	teachers'
lounge. 	The 	reason 	Dauway 	gave 	for 	her 	action 	was 	that 	there
had 	been 	no 	24-hour 	advance 	request 	made 	for 	the 	use 	of 	the
room. 	Dauway's 	version 	of 	the.incident 	cited 	Guy's 	failure 	to
sign 	in 	at 	the 	Dauway's 	office 	prior 	to 	her 	visitation 	on
campus 	in 	the 	early 	morning. 	Dauway 	testified 	that 	Guy
complained 	to 	her 	that 	when 	she 	(Guy) 	went 	to 	the 	teachers'
lounge, 	no 	one 	was 	there. 	The 	only 	documentary 	evidence
presented 	about 	this 	incident 	was 	the 	log 	of 	visits 	of 	employee
association 	representatives 	which 	showed 	that 	Guy 	was 	present
on 	the 	campus 	on 	October 	21, 	1980. 	Her 	arrival 	time 	was
42

7:55 	a.m. 	and 	departure 	was 	shown 	as 	8:30 	a.m.18
Later 	that 	same 	morning 	Guy 	related 	the 	incident 	to 	Collins
when 	she 	stopped 	by 	the 	District 	administrative 	headquarters.
By 	the 	time 	she 	arrived, 	Dauway 	had 	already 	called 	Collins 	and
reported 	the 	matter 	to 	him.
Starting 	in 	the 	fall 	of 	1980, 	Guy 	testified 	that 	she
received 	reminders 	from 	principals 	and 	from 	site 	faculty
representatives 	that 	the 	morning 	visitations 	and 	meetings 	were
to 	be 	confined 	to 	the 	period 	of 	time 	preceding 	the 	beginning 	of
the 	20-minute 	preparation 	periods.
At 	three 	elementary 	school 	meetings 	that 	Guy 	conducted
during 	the 	1980-81 	school 	year, 	she 	was 	not 	permitted 	to 	hold
these 	meetings 	in 	the 	faculty 	lounges. 	Instead 	she 	was
directed 	to 	designated 	classrooms. 	During 	the 	fall 	of 	1980 	a
meeting 	was 	held 	at 	Muir 	Elementary 	School. 	In 	this 	instance,
the 	teachers 	wanted 	an 	afternoon 	meeting 	which 	was 	to 	be 	held
in 	a 	classroom. 	However, 	the 	school 	principal 	required 	the
meeting 	to 	be 	conducted 	in 	the 	teachers' 	lounge 	because 	the
principal 	considered 	the 	classroom 	a 	"designated 	working
area."
18This 	administrative 	law 	judge 	makes 	no 	finding 	about
which 	witnesses' 	version 	of 	the 	incident 	is 	accurate. 	In 	this
instance 	a 	credibility 	resolution 	is 	not 	necessary 	in 	order 	to
reach 	a 	conclusion 	about 	whether 	an 	incident 	actually 	occurred
related 	to 	the 	District's 	attempts 	to 	enforce 	its 	disputed
regulations.
43

In 	the 	fall 	of 	1981 	Guy 	had 	a 	discussion 	with 	the 	principal
of 	Fremont 	Elementary 	School 	regarding 	a 	morning 	meeting 	that
extended 	into 	the 	20-minute 	preparation 	period. 	While 	that
meeting 	was 	in 	progress, 	the 	principal 	appeared 	and 	asked 	to
speak 	with 	both 	Guy 	and 	the 	faculty 	representative 	as 	soon 	as
the 	meeting 	was 	concluded. 	A discussion 	ensued 	at 	which 	time
both 	Guy 	and 	the 	representative 	were 	reminded 	that 	such
meetings 	extending 	into 	the 	20-minute 	period 	were 	impermissible.
In 	September 	1982 	Guy 	received 	a 	letter 	from 	Collins
regarding 	the 	TALB 	fall 	visitation 	schedule 	for 	secondary
schools. 	He 	advised 	her 	that 	the 	scheduled 	meetings 	should 	not
extend 	into 	the 	five 	minute 	passing 	period 	between 	lunch
periods 	when 	teachers 	were 	required 	to 	supervise 	the 	movements
of 	students 	in 	hallways.
During 	this 	same 	period 	of 	time, 	Guy 	met 	with 	a 	teacher 	at
Stevens 	Junior 	High 	School 	during 	that 	teacher's 	conference
period. 	The 	meeting 	lasted 	the 	entire 	conference 	period. 	Guy
signed 	in 	at 	the 	principal's 	office, 	but 	she 	did 	not 	state 	with
whom 	she 	was 	meeting 	nor 	the 	exact 	purpose 	of 	the 	meeting.
This 	was 	an 	instance 	where 	Guy 	considered 	the 	meeting 	to 	be 	of
a 	"confidential" 	nature 	thus 	it 	was 	not 	necessary 	for 	the
District 	to 	know 	all 	the 	details 	of 	her 	meeting.
In 	October 	1980 	Goddard 	was 	involved 	in 	an 	incident 	at
Barton 	Elementary School. 	Goddard 	attempted 	to 	conduct 	a
44

morning
	meeting
	in 	the
	teachers'
	lounge.
	However,
	the
principal
	objected
	because 	she
	had
	not
	been
	informed
	about
	the
meeting
	by
	the
	site
	representative.
	In
	that
	instance
	Goddard
was
	not 	permitted
	to
	finish
	the
	meeting
	in
	the
	teachers'
lounge.
	Instead
	he,
	and
	those
	present,
	were
	required 	to
continue
	the
	meeting
	in 	the
	site
	representative's
	classroom.
Goddard
	said
	that
	TALB
	and
	the
	teachers
	disliked 	this
	change
because 	the
	lounge
	is
	a 	more
	relaxing
	location
	for
	meetings
	and
is
	physically
	more
	comfortable 	than
	the 	classrooms
	which
	are
equipped 	with 	desks
	and
	chairs
	to
	fit
	young
	children
	rather
than
	adults.
On
	occasion 	during
	his 	other
	visitations
	during 	the
	1980-81
school 	year,
	Goddard 	and
	the
	teachers
	were
	required 	to
	meet
	in
the 	school
	library
	instead 	of 	the
	teachers' 	dining
	room
	or
	the
lounges.
	Goddard
	feels 	that
	these
	variations
	in
	meeting
	places
adversely 	affected
	the 	attendance 	since
	the
	locations
	were,
	at
times,
	more 	removed 	from 	where
	the 	teachers 	liked 	to 	gather
	and
were 	accustomed
	to
	meeting. 	Thus, 	fewer
	teachers 	attended 	the
meetings.
	No
	evidence
	was
	presented 	about 	whether 	such
meetings
	were
	formal
	or 	informal 	or 	whether 	they 	occurred
during 	the 	20-minute
	periods 	or
	at 	other 	times.
Another
	incident 	involved
	Goddard 	and
	the 	assignment
	of
	a
meeting
	room
	at
	Stevens 	Junior
	High
	during 	the 	1981-82
	school
year. 	In 	that 	instance,
	Goddard 	had 	an
	encounter 	with 	the
45

principal
	who
	refused 	to
	permit
	Goddard
	the
	use
	of
	the
teachers'
	lounge 	because
	the
	faculty
	site
	representative
	had
failed
	to
	make 	a
	24-hour 	advance
	request
	for 	the
	use
	of
	the
room.
In 	April
	1981
	Welborn
	was
	involved
	in
	an
	incident
	at
Kettering
	Elementary 	School.
	He
	scheduled
	a
	meeting
	with
	Donna
Gannon,
	a
	kindergarten 	teacher.
	This
	meeting
	was
	held
	during
the
	instructional
	day
	to 	prepare
	a
	response
	to
	an
	evaluation
that
	Gannon 	had
	received
	and
	to
	explore 	the
	possibility
	of
	her
filing
	a
	grievance.
	Welborn's 	meeting
	prompted 	an
	exchange
	of
letters
	between
	TALB
	and
	the
	District
	regarding
	meetings 	with
employees
	during 	"non-class
	duty
	time
	during 	the
	workday."
	In
this
	instance,
	Gannon 	had
	not
	made 	a
	request
	for
	release
	time
for
	the
	meeting. 	Following
	the
	District's 	letter
	to
	TALB,
	this
matter
	was
	satisfactorily
	resolved
	between
	the
	parties.
H.
	Availability
	of 	Appropriate
	District 	Facilities
The
	evidence
	shows
	that
	throughout 	the
	District
	there
	is
	a
great
	demand
	for 	the
	use
	of 	the 	classrooms
	and
	other
	facilities
for
	instructional
	purposes 	during 	the 	regular
	school 	day.
Because
	of
	overcrowding
	at
	many
	of 	the 	elementary 	schools,
	it
is
	necessary 	for
	a
	sizeable
	number
	of 	pupils 	to
	be
	bussed
	daily
to 	other
	sites
	which 	have
	classrooms
	available 	to
	accommodate
the 	overflow.
	The
	District 	also
	has 	a
	large 	voluntary 	bussing
program 	which
	involves 	the
	movement
	of
	many
	students 	in
	and
	out
46

of
	facilities
	each
	day.
	The
	after
	school
	use
	of
	District
classrooms
	and
	facilities
	by
	student
	and 	community
	groups
varies
	at
	each
	school
	site
	depending
	on
	the 	enrollment
	and
	the
number
	of
	extracurricular
	after
	school
	activities
	scheduled.
At
	approximately
	half
	of
	the
	junior
	high
	schools,
	there
	is
also
	the
	tardy/detention
	program.
	These
	students 	are
	retained
for
	10
	to
	15
	minutes
	after
	the
	instructional
	day
	in 	the
classroom
	where
	they
	have
	the 	seventh 	period
	by
	the
	seventh
period 	teacher.
	This
	program,
	where
	in
	effect,
	causes
	the
	use
of
	a 	number
	of
	classrooms
	on 	a
	four
	day
	a 	week
	basis.
	Wayne
Piercy,
	the
	principal
	of 	Franklin 	Junior
	High
	School,
	testified
that
	on
	any
	given
	day
	approximately
	32
	of 	the
	39
	teachers
	at
Franklin
	are
	involved
	in 	the
	detention 	of
	1
	to
	2
	pupils 	per
	day.
ISSUES
1.	
Whether
	the
	Association's 	challenges 	to 	the
	District's
access 	regulations 	raised
	in
	its
	particularization
	to 	the
charge 	are 	time-barred
	by
	the 	provisions 	of
section
	3541.5
(a)
(l)?
2.	
Whether,
	either
	by
	adoption 	or
	application, 	certain
	of
the
	District's
	revised
	employee
	organization 	access
	regulations
are 	"unreasonable" 	within 	the
	meaning
	of 	section 	3543.l{b)
	and
thereby 	constitute
	a
	violation 	of 	section
	3543.S(a)
	and
	(b)?
47

3. 	Whether, 	through 	specific 	provisions 	of 	the 	CBA 	of 	the
parties, 	the.Association 	has 	waived 	its 	right 	to 	object 	to 	the
application 	of 	those 	access 	restrictions 	which 	it 	now
challenges?
CONCLUSIONS 	OF 	LAW
Initially, 	it 	is 	noted 	that 	not 	all 	provisions 	of 	the
revised 	access 	regulations 	are 	being 	challenged. 	Specifically
at 	issue, 	are 	those 	parts 	of 	the 	rules 	that: 	(1) 	prohibit
association 	and 	personal 	business 	during 	the 	20-minute 	periods
before 	and 	after 	the 	instructional 	day 	or 	the 	assigned
conference/preparation 	periods 	and, 	(2) 	give 	the 	District 	the
right 	to 	specify 	the 	on-campus 	meeting 	locations 	for
Association 	business 	and 	require 	at 	least 	a 	24-hour 	advance
request 	for 	room 	use 	for 	Association 	meetings.
As 	noted 	above, 	the 	regulations 	presently 	being 	challenged
in 	this 	case 	were 	previously 	litigated 	before 	the 	PERB 	in 	a
pre-amended 	form 	and 	resulted 	in 	an 	earlier 	decision, 	namely,
Long 	Beach 	Unified 	School 	District, 	supra. 	Although 	this 	case
at 	first 	glance 	may 	appear 	to 	be 	simply 	a 	relitigation 	of 	that
case, 	it 	does 	present 	important 	factual 	and 	legal 	differences
which 	distinguish 	it 	from 	the 	earlier 	case.
In 	the 	earlier 	case 	the 	charging 	party 	was 	a 	non-exclusive
representative 	which 	was 	engaged 	in 	a 	very 	competitive
organizing 	effort 	of 	both 	certificated 	and 	classified 	District
48

employees.
	No
	exclusive
	representative
	had
	been
	selected
	and
there
	was 	no
	collective
	bargaining
	agreement
	in 	existence
	at
that
	time.
	In 	the
	present
	case
	the
	Charging
	Party
	is
	an
exclusive 	representative
	and
	at
	the
	time
	of
	the 	hearing
	the
parties
	had
	negotiated 	three
	collective
	bargaining
	agreements,
two
	of
	which-contained
	provisions 	addressing 	the
	areas 	of 	the
revised 	regulations
	now
	being
	contested.
Because
	of 	these
	factors, 	this
	case
	presents
	an
	issue
	not
previously
	addressed
	by
	PERB
	in
	its
	growing
	body
	of
	case
	law
interpreting
	employee
	organization
	access
	rights
	under
	either
the
	EERA,
	or 	the
	Higher
	Education
	Employer-Employee
	Relations
Act,
	(hereafter
	HEERA)
.19
A.
	Timeliness 	of 	Allegations
	Included 	in 	the
	Particularization
of 	the
	Charge
The
	threshold 	issue 	of
	this
	case
	is
	the
	District's
objection 	to
	the
	allegations 	raised
	by
	the 	Association 	in
	its
Response
	to
	the
	Motion
	for
	Particularization
	of 	the 	charge.
The
	District
	contends
	that
	TALB
	expanded
	the
	scope
	of 	the
charge
	by
	adding
	sections 	of 	the
	regulations 	to
	its
	charge
	in
the
	particularization.
	This
	objection, 	raised
	as 	an
affirmative 	defense, 	argues
	that
	the
	additional 	sections 	are
19The
	HEERA
	is
	another 	labor 	relations 	act 	administered
by
	the
	PERB. 	The 	language 	of 	this 	statute,
	which
	provides 	for
express
	employee
	organization 	access
	rights, 	is 	virtually
identical 	to 	the 	language 	of 	section 	3543.l(b) 	of 	the
	EERA.
49

time-barred 	by 	the 	statute 	of 	limitations 	provision 	in
section 	3541.S(a) (1) .20 	The 	District's 	basis 	for 	its
objection 	is 	that 	the 	original 	charge 	filed 	on March 	16, 	1981,
raised 	objections 	to 	section 	I, 	paragraph 	A, 	section 	II,
paragraphs 	A and 	c, 	and 	section 	III 	of 	the 	revised
regulations. 	In 	its 	particularization 	to 	the 	charge 	TALB 	added
objections 	to 	sections 	II, 	paragraph 	B, 	section V, 	paragraph 	C,
subparts 	1 	and 	2$ 	The 	District 	argues 	that 	since 	the
regulations 	were 	issued 	on 	September 	15, 	1980, 	and 	the 	original
charge 	was 	filed 	March 	16, 	1981, 	the 	Response 	to 	the 	Motion 	to
Particularization, 	which 	was 	filed 	on April 	27, 	1981, 	was 	filed
seven 	months 	after 	the 	occurrence 	of 	the 	act 	complained 	of.
Consequently,
~
the 	additional 	allegations 	in 	the
particularization 	are 	untimely 	under 	the 	statutory 	limitations
provision 	of 	3541.5 (a) (1).
The 	fundamental 	purpose 	of 	a 	statute 	of 	limitations 	is 	to
promote 	justice 	by 	preventing 	surprise 	and 	prejudice 	to 	a 	party
20section 	3541.5 (a} (1) 	states, 	in 	relevant 	part:
(a) 	Any 	employee, 	employee 	organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the
board 	shall 	not 	do 	either 	of 	the 	following:
(1) 	issue 	a 	complaint 	in 	respect 	of 	any
charge 	based 	upon 	an 	alleged 	unfair 	practice
occurring 	more 	than 	six 	months 	prior 	to 	the
filing 	of 	the 	charge; 	. 	. 	.
50

from
	having
	to
	defend
	against
	stale
	claims
	which 	"have
	been
allowed
	to
	slumber
	until
	evidence
	has 	been
	lost,
	memories 	have
faded
	and
	witnesses
	have
	disappeared."
	Order
	of
	Railroad
Telegraphers
	v.
	Railway
	Express
	Agency 	(1944) 	321
	U.S.
	342 	[14
LRRM
	506].
	A
statute
	of
	limitations
	helps 	to 	assure
	that
	the
defendant
	receives
	timely
	notice
	which
	enables
	him/her
	to
assemble
	a
	defense
	while 	the
	facts
	are
	still
	fresh.
	Elkins
	v.
Derby 	(1974) 	12
	Cal.3d
	410.
TALB
	presents
	two
	theories
	of 	defense
	to 	the
	untimeliness
claim.
	First,
	it
	maintains
	that
	the
	District's
	conduct
	with
regard
	to
	the 	promulgation
	and
	implementation
	of
	the
regulations 	constitutes
	a
	"continuing
	violation"
	because
	the
rules
	remained
	in
	effect
	and 	were
	applied
	up
	to
	the
	day
	that
the
	original
	charge
	was
	filed.
	In 	support 	of
	this
	theory,
	TALB
relies
	on
	the 	Board's 	decision 	in 	Carlsbad 	Unified 	School
District
	(1/30/79)
	PERB
	Decision
	No.
	89,
	where
	PERB
	applied 	the
notion 	of 	"continuing 	violation" 	in 	construing 	the
	statute
	of
limitations
	provision_ contained 	in 	section
	3541.S(a)
(1).
In 	Carlsbad, 	supra, 	the
	District
	had 	announced
	its
	decision
to 	transfer 	certain 	individual
	employees
	who
	actually
	were
relocated
	sometime
	later.
	In
	that
	case
	PERB
	held
	that:
While
	it
	may 	have 	been
	possible 	for
	O-CFT
	to
have
	filed
	the 	charge
	at
	the 	time
	that 	the
decision 	to 	transfer
	the 	employees 	was
announced,
	it
	was
	not 	precluded
	from 	doing
so 	when 	those 	transfers 	actually
	became
51

effective.
	The
	interference
	with
	the
employees'
	rights
	did 	not
	start
	and
	end
	with
the
	announcement.
	It
	existed
	at
	the
	time
the
	transfers
	actually·occurred
	and
persisted
	thereafter.
	The
	District's
conduct
	constituted
	a
	continuing
	violation
of
	section
	3543.S(a)
	[citation
	omitted].
	We
therefore 	sustain
	the
	Hearing
	Officer's
finding
	that
	the 	charge
	was
	timely
	filed.
It
	is
	noted
	that
	in
	the
	statement 	of 	alleged
	conduct
	in
	the
original
	charge,
	TALB
	alleges
	in
	paragraph
	three
	that
	"on
	or
about
	September
	15, 	1980,
	and
	continuously
	thereafter
	(emphasis
added)
	the
	Board
	...
	and
	its
	agents,
	has
	denied
	to 	the
Association
	its
	right
	of 	access
...	
"	
Attached
	to
	the
statement 	of 	the 	charge
	was 	a
	copy
	of
	a
	letter
	from
	Guy
	to
Kreiling
	dated
	December
	16, 	1980,
	citing
	examples
	of
	the
District's
	conduct 	about
	which
	TALB
	objected.
	The
	specific
references 	to
	the
	regulations 	cited
	in
	her
	letter
	were
incorporated
	by
	reference 	into
	the 	statement 	of 	the 	charge.
Receiving 	the 	context 	in
	which
	the
	exqmples
	of
	changes
	that
the
	District
	made
	in 	the
	regulations
	and
	their
	alleged
	impact
on
	the 	Association's
	access
	were
	described 	in 	the
	letter,
	it
cannot
	be
	concluded
	that
	those
	sections 	of 	the
	regulations
cited 	in 	the
	letter
	constituted 	the
	full
	extent 	of 	the
Association's 	objections.
	Thus, 	the
	additional 	sections 	of 	the
regulations 	cited 	in 	the
	particularization
	are
	viewed 	as
	more
fully 	explaining 	the 	basis 	for 	the 	objections 	raised 	in 	the
original 	charge.
	They
	are 	not 	considered 	to
	have 	improperly
raised
	new
	matters 	as 	contended 	by
	the 	District.
52

The
	evidence
	shows
	that
	the
	regulations
	at
	issue 	did
	remain
in
	effect
	and
	were
	enforced
	up
	to
	the
	time
	that
	the
	original
charge
	was
	filed.
	Although
	it
	would
	have 	been
	possible
	for
	the
Association 	to
	file
	a
	charge
	at
	the
	time
	that
	the
	rules
	were
issued,
	the 	alleged
	interference
	with
	the
	Association's
	rights
did
	not
	start
	and 	end
	with
	the 	issuance
	of
	the
	rules.
	As 	was
noted 	in 	Carlsbad, 	supra,
	it
	was
	not 	only 	the
	publication
	of
the 	decision 	to
	transfer
	which
	was
	unlawful, 	but
	each
	act
implementing
	such
	decision
	or
	policy
	was
	held 	to
	constitute
	a
separate 	violation
	from 	which
	redress
	could
	be
	sought.
Applying
	that
	precedent 	to
	this
	case,
	it
	is
	concluded
	that
	from
the 	date
	that
	the
	regulations
	went
	into
	effect,
	each
	instance
of
	enforcement
	thereafter 	constituted
	a
	separate
	and
	additional
basis
	for 	the
	filing
	of
	a
	charge.
	(See
	Carlsbad, 	supra.
	See
also 	California 	State 	University,
	Hayward
	(8/10/82)
	PERB
Decision
	No.
	231-H.)
By
	characterizing
	the
	District's
	actions
	as 	"continuous
conduct," 	the
	statute
	of 	limitations
	began
	to
	run
	again
	after
each
	instance 	of 	alleged
	unlawful 	enforcement 	occurred
beginning
	September
	15, 	1980,
	and
	thereafter 	until
	the 	time 	the
charge
	was
	filed.
	Following
	this
	theory,
	any
	alleged
interference
	with 	the 	Association's 	rights
	which
	existed 	at
	the
time
	that
	the
	original
	charge
	was
	filed,
	were
	timely 	raised 	in
the 	particularization 	of 	the 	charge.
----~-
53

TALB's
	alternative
	argument
	is
	that
	even
	if
	the
	allegations
contained
	in
	particularization
	of
	the 	charge
	are 	construed
	to
be
	more
	expansive 	than 	the
	original
	statement,
	in
	this
	case 	the
doctrine
	of 	equitable
	tolling
	should
	be
	applied 	to 	preclude 	the
charges
	from
	being
	time-barred.
In
	support 	of
	this
	argument,
	TALB
	relies
	on
	the
	Board's
decision 	in 	State
	of
	California,
	Department
	of
	Water
	Resources
(12/29/81)
	PERB
	Order
	No.
	Ad-122-S,
	in
	which
	PERB
	adopted
	and
applied
	the
	equitable
	tolling 	principles
	enunciated 	in
	Elkins
v.
	Derby,
	supra.
	(See
	also,
	Victor 	Valley
	Joint
	Union
	High
School
	District
	(12/29/82)
	PERB
	Decision
	No.
	273.)
In 	Victor 	Valley, 	supra,
	PERB
	pointed 	out
	that
	the
	"key
issue
	is
	whether 	the 	defendant
	would 	be
	surprised
	or
	prejudiced
by	
the
	tolling."
Based
	on
	the
	facts
	presented 	in
	this
	case,
	it
	would	
be
equally 	appropriate 	to
	apply 	the
	doctrine 	of 	equitable
tolling.
	The
	District
	was 	on
	notice
	from
	the
	time
	that 	the
parties
	met
	in
	late
	October
	or
	early
	November 	1980
	to 	discuss
the
	regulations,
	and
	continually 	thereafter, 	that
	TALB
disagreed
	with 	the 	lawfulness 	of 	the
	revisions
	made
	to 	the
	1976
regulations,
	as 	well 	as 	the 	application 	of 	those 	rules 	to
	its
on-campus
	activities.
	Even
	if
	it
	is
	argued
	that 	this
disagreement 	between 	the
	parties
	was
	insufficient 	notice, 	the
District 	certainly
	became 	aware 	of 	the 	existence 	of
	a
	dispute
54

when 	TALB 	filed 	a 	request 	with 	PERB 	in 	October 	1980 	to 	initiate
compliance 	proceedings 	regarding 	the 	order 	in 	Long 	Beach,
supra.
TALB's 	attempt 	to 	obtain 	a 	compliance 	investigation 	clearly
put 	the 	District 	on 	notice 	of 	the 	nature 	of 	their 	dispute 	and
obviated 	the 	danger 	of 	surprise 	and 	prejudice 	which 	might
otherwise 	have 	resulted 	from 	the 	passage 	of 	time.
It 	is 	found 	that 	the 	notice 	created 	by 	this 	procedure 	was
effective 	to 	the 	extent 	that 	it 	protected 	the 	"[d]efendants'
interest 	in 	being 	promptly 	apprised 	of 	claims 	against 	them 	in
order 	that 	they 	may 	gather 	and 	preserve 	evidence" 	[Elkins 	v.
Derby, 	supra, 	12 	Cal.3d 	at 	417}. 	It 	is 	therefore 	concluded
that 	the 	statute 	of 	limitations 	found 	in 	section 	3541.S(a) (1)
was 	equitably 	tolled 	from 	October 	22, 	1980 	until
February 	11, 	1981, 	while 	TALB 	reasonably 	and 	in 	good 	faith
pursued 	a 	remedy 	before 	the 	PERE 	via 	the 	compliance 	procedure.
TALB 	thereafter 	timely 	filed 	an 	Unfair 	Practice 	Charge 	with
PERB 	raising 	the 	same 	issues. 	This 	charge 	was 	then
supplemented 	by 	the 	particularization 	which 	was 	timely 	filed 	on
April 	27, 	1981.
B. 	Validity 	of Access 	Regulations
Section 	3543.l(b)21 	gives 	an 	employee 	organization 	the
2lsection 	3543.l(b) 	states:
(b) 	Employee 	organizations 	shall 	have 	the
right 	of 	access 	at 	reasonable 	times 	to 	areas
55

right 	of
	access
	to
	areas 	in
	which
	employees 	work,
	the
	right
	to
use
	various
	means
	of
	communication
	with
	employees
	and
	the
	right
to
	use
	institutional
	facilities.
	This
	right
	of
	access
	is
limited 	to
	"reasonable
	times"
	and
	is
	subject 	to 	"reasonable
regulations"
	adopted
	by
	the
	employer
	to
	implement
	the
	access
procedure. 	In
	striking 	this
	balance, 	the
	Board 	has
	considered,
as
	stated
	in
	Richmond
	Unified
	School
	District/Simi
	Valley
Unified
	School
	District
	(8/1/79)
	PERB
	Decision
	No.
	99,
	that
	an
employer's
	regulation 	of
	an
	organization's
	access
	rights
	is,
...
	reasonable
	if
	it
	is
	consistent
	with
the
	basic 	labor
	law
	principles 	set 	forth
	in
EERA
	which
	are
	designed
	to
	ensure
	effective
and
	non-disruptive 	organizational
communications.
In 	determining
	whether
	an
	employer's
	rule
	concerning
organizational
	activity 	is
	reasonable
	and
	therefore 	permissible
under
	the
	EERA,
	the
	Board 	has
	considered 	applicable
	private
sector 	labor
	law
	precedent.
In
	Republic 	Aviation
	Corp.
	v.
	NLRB
	(1945) 	324
	U.S.
	793 	[16
LRRM
	620], 	the
	Supreme
	Court 	adopted 	the 	presumption
	that
	a
rule 	prohibiting
	union
	solicitation	
by	
employees
	outside
	their
working 	time
	was 	an
	unreasonable
	impediment
	to
in
	which 	employees 	work,
	the 	right 	to
	use
institutional 	bulletin 	boards, 	mailboxes,and
	other
	means
	of 	communication,
	subject 	to
reasonable 	regulations,
	and 	the
	right 	to 	use
institutional 	facilities 	at 	reasonable 	times
for 	the 	purpose 	of 	meetings 	concerned 	with
the 	exercise 	of 	the 	rights 	guaranteed 	by
this 	chapter.
56

self-organization. 	Subsequent 	decisions 	in 	this 	area 	have
attempted 	~o 	accommodate 	the 	employees' 	rights 	to 	freely
participate 	in 	the 	activities 	of 	employee 	organizations 	with
the 	right 	of 	the 	employer 	to 	maintain 	order 	and 	discipline.
NLRB 	v. 	Babcock 	and 	Wilcox, 	Co. 	(1956} 	351 	U.S. 	105 	[38 	LRRM
20011. 	In 	striking 	this 	adjustment, 	in 	Stoddard 	Quirk 	Mfg. 	Co.
(1962) 	138 	NLRB 	615 	[51 	LRRM 	1110], 	the 	National 	Labor
Relations 	Board 	(hereafter 	NLRB) 	established 	a 	distinction
between 	distribution 	of 	literature 	and 	solicitation.
Restrictions 	on 	employee 	solicitation 	during 	non-working 	time
and 	restrictions 	on 	distribution 	during 	non-working 	time 	and 	in
non-working 	areas 	were 	held 	to 	be 	violative 	of 	section 	8(a) (1)
of 	the 	National 	Labor 	Relations 	Act 	(hereafter 	NLRA) 	unless 	the
employer 	justifies 	the 	rules 	by 	a 	showing 	of 	special
circumstances 	which 	make 	the 	rule 	necessary 	to 	maintain
production 	or 	discipline. 	(See 	also 	Long 	Beach 	Unified 	School
District, 	supra 	at 	pp. 	7-8.)
In 	Essex 	International, 	Inc. 	{1974} 	211 	NLRB 	749 	[86 	LRRM
1411], 	the 	NLRB 	distinguished 	between 	employer 	rules 	which
prohibit 	solicitation 	during 	"working 	hours" 	and 	those 	which
prohibit 	solicitation 	during 	"working 	time." 	In 	that 	decision
the 	NLRB 	held 	that 	the 	term 	"working 	hours" 	generally 	is
understood 	to 	mean 	the 	entire 	period 	of 	time 	between 	when 	an
employee 	begins 	and 	completes 	a 	shift. 	Because 	a 	rule
57

prohibiting
	solicitation
	during
	"working 	hours~
	would
	extend
the
	ban 	through 	lunch
	and
	rest
	periods,
	it
	is
	presumptively
illegal.
	The
	NLRB
	held
	that
	the
	term 	"working 	time"
	generally
is
	understood
	to
	mean
	only
	that
	portion 	of
	a
	shift
	when
	an
employee
	is 	actually
	working.
	Because
	a
	rule 	prohibiting
solicitation
	during
	"working 	time"
	would
	exclude 	lunch
	and
	rest
periods,
	it
	is
	presumptively
	legal.
In 	interpreting
	the
	meaning
	of 	the
	term
	"reasonable 	times"
in
	section 	3543.l(b),
	the
	PERB
	applied
	this
	federal 	sector
precedent
	and
	interpreted
	the
	term
	to
	mean
	"non-working
	time."
(See 	Long
	Beach,
	supra
	at
	p.
	9.)
With
	these 	basic 	principles
	in
	mind,
	each
	aspect 	of
	the
Association's 	objections 	to
	the
	present 	regulations
	will
	be
discussed
	below.
1.
	The
	Prohibition
	Against 	Organizational 	Activity
During
	the
	Duty 	Hours
	of 	the
	Workday
The
	rule 	prohibiting 	association
	business 	during 	duty 	hours
of 	the
	workday
	is
	found
	in
	section
	II,
	paragraphs
	A, 	B, 	and
	C
of 	the 	regulations.22 	Paragraphs
	A and
	Bare
	the
	same
	as
	the
versions 	of 	the 	rule
	promulgated 	in
	1976.
	As 	was
	noted
	by
	the
Board
	in
	Long
	Beach,
	supra,
	this
	regulation
	does 	not
distinguish 	solicitation
	from
	distribution.
	Rather,
	it
	seeks
to
	restrict
	both 	types 	of 	organizational 	activities 	directed 	at
employees 	during 	the 	duty 	hours 	of 	the 	workdays 	for 	the
22see 	full 	text, 	supra 	at 	pp. 	11-13.
58

individuals
	involved.
	The
	net
	effect
	of
	this
	rule
	is 	that
	it
prohibits
	all
	organizational
	activity
	from
	the
	20
	minutes
	prior
to 	the
	start
	of
	a
	teacher's
	first
	assigned 	period
	to
	20
	minutes
after
	the
	last
	assigned
	period,
	with 	the 	exception
	of
	the
duty-free
	lunch
	periods
	and
	the
	nutrition
	break 	time.
In
	Long
	Beach,
	supra, 	the
	Board
	found
	that
	to 	the
.extent
that
	the
	District's
	ban 	on
	organizational
	activity
	prohibited
solicitation
	and
	distribution 	efforts
	directed
	at
	teachers
	who
were
	not 	assigned
	work
	during 	the
	20-minute
	periods 	before
	and
after
	classes
	and 	who
	were
	in
	non-working
	areas,
	the
	rule
	was
unreasonable
	and
	constituted
	a
	violation
	of
section
	3543.S(b).23	
Long
	Beach
	Unified
	School
	District,
supra
	at
	p. 	9.
Following 	the·
ruling	
by	
PERB,
	section
	II,
	paragraph
	C,
which
	defines
	the
	workday,
	was
	modified
	to 	the
	extent 	that
	it
now
	states
	the 	types 	of
	activities
	to
	be
	performed
	during 	the
two
	20-minute
	periods
	each 	day. 	In
	this
	regard,
	it
	is
	noted
that 	there
	is
	no
	dispute
	between
	the
	parties
	regarding
23section 	3543.S(a)
	and 	(b)
	states,
It
	shall
	be
	unlawful 	for
	a
	public 	schoolemployer
	to:
(a) 	Impose
	or 	threaten 	to
	impose
	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against
	employees, 	or 	otherwise
to 	interfere 	with, 	restrain, 	or 	coerceemployees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by
	this 	chapter.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
59

the 	fact 	that 	the 	two 	20-minute 	periods 	are 	considered 	"duty
time." 	The 	dispute 	is 	over 	whether 	the 	time 	is 	"working" 	or
"non-working" 	time.
The 	Association 	maintains 	that 	the 	20-minute 	rule 	is
unreasonable 	and 	invalid 	on 	its 	face 	and 	as 	applied. 	Since 	it
restricts 	employee 	organization 	access 	to 	time 	outside 	of
actual 	working 	time, 	it 	must 	be 	presumed 	to 	be 	unreasonable
under 	the 	precedent 	established 	by 	Long Beach 	Unified 	School
District, 	supra, 	which 	cites 	the 	precedent 	set 	by 	Republic
Aviation, 	Inc, 	supra.
For 	the 	same 	reasons, the 	Association 	also 	attacks
section 	II, 	paragraph 	B, 	as 	unreasonably 	restricting 	individual
employees 	from 	consulting 	with 	Association 	representatives
regarding 	personal 	employment 	matters 	such 	as 	the 	processing 	of
a 	grievance 	except 	outside 	of 	duty 	hours 	of 	the 	workday.
The 	Association 	contends 	that 	the 	20-minute 	periods 	are
still 	basically 	non-assigned 	duty 	time 	during 	which 	teachers
are 	free 	to 	exercise 	their 	discretion 	about 	performing 	certain
work-related 	tasks. 	The 	Association 	maintains 	that 	because
there 	has 	been 	no 	actual 	change 	in 	the 	nature 	of 	activities
engaged 	in 	by 	employees 	currently 	from 	those 	found 	to 	exist 	in
1978, 	the 	rule 	of 	law 	applied 	to 	the 	situation 	in 	Long 	Beach,
supra, 	should 	be 	reaffirmed 	in 	the 	present 	case.
The 	District 	defends 	its 	regulations 	restricting 	access
during 	the 	20-minute 	periods 	by 	arguing 	that 	these 	two 	periods
60

are
	part
	of
	the 	teachers. 	paid
	duty
	day
	and
	that
	these 	times
are
	needed
	for
	preparatory
	and
	follow-up
	tasks
	which
	are
required 	to 	insure
	effective
	use
	of
	classroom 	time.
	The
District
	further
	argues
	that
	although
	teachers 	are 	permitted 	to
exercise 	professional
	discretion
	as
	to 	the
	most
	effective
	use
.
of
	this
	time, 	they
	have
	a
	myriad
	of
	specific
	and
	general
	duties
to
	be
	carried
	out
	during 	these
	two
	time 	frames.
	Examples
	of
such
	duties
	are
	those
	listed
	in 	the
	amendment
	to
	paragraph
	C.
The
	District
	asserts
	four 	reasons
	to
	justify
	the
	"no
access" 	rule
	during 	the
	20-minute
	periods.
	First,
	these
preparation
	periods 	are
	essential
	to 	the 	proper 	performance
	of
a
	teacher's
	professional 	duties.
	Second,
	the
	general 	informal
supervisory 	functions
	performed
	by
	all
	teachers
	while
	on
	campus
including 	these
	preparation 	periods,
	are
	essential
	to
maintaining 	the
	safety
	and
	discipline
	of 	students.
Additionally,
	this
	supervisory 	role
	is
	required
	by
	State
	law,
vis-a-vis 	specific
	provisions 	of
	the 	Education
	Code 	and
	the
California
	Administrative
	Code.
	Third, 	there
	has 	been 	no
demonstration
	that
	the 	times 	before
	and
	after
	the 	20-minute
periods, 	the 	duty-free
	lunch
	and
	nutritional
	break,
	and
	the
extra
	time
	on
	the
	early-leaving
	days
	are
	insufficient
	for 	the
accomplishment
	of 	Association 	business.
	And
	finally, 	there
	has
been 	no
	denial 	of 	access 	to 	the 	Association 	during 	the 	non-duty
periods
	and
	therefore, 	unlike 	those 	cases
	where
	interference
has 	been 	found, 	the 	denial 	of 	access 	is 	not 	based 	upon
anti~union 	animus.
61

Additionally, 	the 	District 	argues 	that 	its 	rule 	banning
teachers' 	personal 	activities 	during 	the 	20-minute 	periods 	is
equally 	applied 	with 	regard 	to 	non-organizational 	activities
and 	hence 	does 	not 	stem 	from 	any 	discriminatory 	motive.
The 	evidence 	shows 	that 	the 	teachers' 	actual 	use 	of 	the
20-minute 	periods 	is 	quite 	similar 	to 	the 	use 	found 	to 	exist 	in
1978 	when 	the 	first 	hearing 	was 	conducted. 	Although 	some
teachers 	have 	specific 	assignments 	during 	these 	periods 	such 	as
morning 	yard 	duty, 	hall 	supervision 	during 	the 	passing 	periods,
faculty 	meetings 	and 	afternoon 	tardy/detention, 	there 	are 	a
number 	of 	teachers 	who 	spend 	part 	or 	most 	their 	20-minute
periods 	in 	the 	teachers' 	lounges 	relaxing 	or 	taking 	a 	break
either 	alone 	or 	with 	other 	teachers. 	Some 	teachers 	arrive 	on
campus 	as 	much 	as 	30 	to 	45 	minutes 	prior 	to 	the 	beginning 	of
the 	20-minute 	preparation 	period 	so 	that 	they 	can 	spend 	the
actual 	preparation 	time 	relaxing 	in 	the 	lounge, 	"mentally
preparing 	themselves 	for 	beginning 	the 	instructional 	day." 	The
District 	administration 	is 	aware 	of 	the 	fact 	that 	many 	teachers
do 	not 	actually 	work 	during 	the 	entire 	20 	minutes 	before 	or
after 	classes. 	Some 	teachers 	choose 	to 	utilize 	that 	time 	as
non-work 	break 	time 	and 	take 	work 	home 	where 	there 	is 	a 	longer
uninterrupted 	span 	of 	time 	to 	concentrate 	on 	a 	particular
activity, 	if 	it 	is 	an 	activity 	that 	can 	be 	done 	outside 	the
school 	site. 	This 	practice 	is 	consistent 	with 	the 	workday
provision 	of 	the 	CBA.
62

Although 	the 	District 	attempted 	to 	present 	a 	strong 	case
demonstrating 	the 	importance 	of 	informal 	supervisory
responsibilities 	of 	all 	teachers 	during 	the 	20-minute 	periods,
it 	is 	not 	persuasive. 	Absent 	a 	specific 	supervisory 	assignment
during 	these 	periods, 	this 	particular 	responsibility 	exists 	for
the 	teachers 	at 	all 	times 	that 	they 	are 	on 	campus, 	whether 	it
is 	during 	duty 	or 	non-duty 	times. 	The 	District 	has 	failed 	to
show 	that 	the 	nature 	of 	this 	general 	responsibility 	justifies 	a
total 	ban 	on 	access 	during 	the 	20-minute 	periods 	when 	teachers
are 	not 	actually 	assigned 	or 	engaged 	in 	work.
In 	further 	support 	of 	its 	argument 	that 	the 	above
restrictions 	are 	valid, 	the 	District 	points 	to 	Articles 	IV 	and
V of 	the 	CBA. 	Article 	IV, 	section 	C, 	states 	that 	"the
Association 	agrees 	that 	its 	authorized 	staff 	and 	building
representatives 	shall 	not 	con.duct 	As·sociation 	business 	with 	the
employees 	during 	regular 	working 	hours". 	That 	same 	section
defines 	non-duty 	times 	as 	before 	and 	after 	the 	scheduled
workday 	of 	each 	employee, 	nutrition 	break 	and 	lunch 	period.
The 	District 	contends 	that 	the 	language 	in 	this 	article
combined 	with 	the 	workday 	provisions 	in Article 	V, 	permits 	the
restrictions 	contained 	in 	sections 	II 	and 	III 	of 	the
regulations.
A review 	of 	the 	language 	in 	each 	of 	these 	provisions 	which
addresses 	the 	duty 	hours 	of 	the 	workday 	reveals 	that 	the
63

meaning
	of
	the
	various
	terms
	used
	to
	describe
	"duty 	hours"
	is
unclear
	when
	compared
	with
	the
	terms 	"working
	hours"
	and
"working 	time" 	as 	they
	were
	interpreted
	by
	the
	Board
	in
	Long
Beach
	Unified
	School
	District,
	supra.
The
	CBA
	does
	not
	define
	the
	term
	"regular
	working
	hours"
beyond
	its
	reference 	in
	Article
	V
section
A,
	paragraph
	1,
	to
"on-site
	and
	off-site
	hours
	of
	work."
	Paragraph
	2
	of
	that
	same
provision
	refers
	to 	the
	"regular
	school
	day"
	for 	elementary
school
	teachers.
	Paragraph	
6	
of
	that 	section
	refers 	to
"on-site
	duty 	day."
	As
	to
	the
	two
	20-minute
	periods,
	none
	of
these
	terms
	specifically 	refer
	to 	these
	time
	periods
	as
"working
	time."
	Additionally,
	Article
	IV,
	section
	C,
	states
that 	the
	parties
	intended
	to
	amend
	this
	section 	to
	conform
	to
the
	Public
	Employment
	Relations 	Board's
	final
	decision
	on
	this
matter.
Although 	the
	two
	documents 	which
	prohibit 	association
business 	(including
	solicitation)
	during 	the
	20-minute
	periods
of
	the
	employees'
	workday
	refer
	to
	this
	time 	as
	"regular
working
	hours," 	"duty 	hours 	of 	the
	workday" 	and
	"hours
	of
work,"
	none
	of 	these
	clarifies,	
by	
either 	definition
	or
example,
	how
	to 	distinguish
	"working 	hours"
	from 	"working
time."
	When
	the
	parties
	met
	in 	the
	fall
	of
	1980, 	they
	were
well 	aware 	of 	the
	distinctions 	enunciated
	by
	PERB
	in
	Long
Beach, 	supra, 	yet
	no 	change 	was 	made
	in 	the
	CBA
	language
	to
reflect 	this.
64

The 	Board, 	consistent 	with 	the 	NLRB, 	has 	held 	that 	a
waiver, 	to 	be 	effective, 	must 	be 	clearly 	and 	unequivocally
conveyed. 	Oakland 	Unified 	School 	District 	(8/31/82) 	PERB
Decision No. 	236:
[W]e 	will 	find 	a 	waiver 	only 	when 	there 	is
an 	intentional 	relinquishment 	of 	these
rights, 	expressed 	in 	clear 	and 	unmistakable
terms ....
Grossmont 	Union 	High 	School 	District 	(5/26/83) 	PERB 	Decision
No. 	313, 	citing 	San 	Francisco 	Community 	College 	District
(10/12/79) 	PERB 	Decision 	No. 	105, 	at 	p. 	11.
It 	is 	clear 	that 	TALB, 	either 	by 	clear 	and 	unmistakable
language 	or 	demonstrative 	behavior, 	in 	the 	CBA 	has 	not 	waived
its 	right 	to 	access 	during 	the 	~a-minute 	periods. 	This
conclusion 	is 	supported 	by 	the 	testimony 	of 	both 	Guy 	and
Collins. 	As 	the 	chief 	negotiators 	for 	each 	party 	to 	the 	CBA's
being 	reviewed, 	both 	of 	them 	testified 	that 	the 	parties
intended 	to 	reopen 	the 	agreement 	and 	amend 	the 	Article 	IV,
subsection 	C, 	in 	accord 	with 	the .Board's 	final 	decision 	on 	the
subject. 	They 	met 	in 	the 	fall 	of 	1980, 	discussed 	the 	matter,
and 	did 	not 	agree 	about 	the 	appropriate 	interpretation 	of 	Long
Beach, 	suEra, 	as 	it 	relates 	to 	the 	20-minute 	periods.
Consequently, 	that 	section 	of 	the 	contract 	was 	not 	amended.
Obviously 	then, 	the 	express 	language 	of 	Article 	IV, 	section 	C,
does 	not 	constitute 	a 	clear 	and 	unequivocal 	waiver 	on 	this
question. 	Likewise, 	it 	is 	concluded 	that 	this 	language 	does
65

not
	provide
	contractual 	authority
	for 	the
	amendments 	made
	in
Section
	II,
	paragraph
	A,
	of
	the
	regulations.
It
	is
	also
	noted
	that
	the
	revision
	of
	the
	regulations
	now
under
	attack
	was
	completed
	prior
	to
	the
	parties
	ever 	having
	met
and
	discussed
	the
	meaning
	of
	Long
	Beach,
	supra, 	within 	the
context
	of
	their
	contractual
	agreement.
In
	Ace
	Machine
	Company 	(1980) 	249
	NLRB
	623 	[104
	LRRM
	1449]
624,
	the
	NLRB
	declared:
It
	is
	well
	settled 	that
	the 	reasonably
foreseeable
	effects
	of 	the
	wording
	of
	a
no-solicitation
	rule
	on
	the
	conduct
	of
employees
	will
	determine
	its
	legality,
	and
that
	where
	the
	language
	is
	ambiguous 	and 	may
be
	misinterpreted
	by
	the
	employees
	in
	such
	a
way
	as
	to
	cause
	them
	to
	refrain
	from
exercising
	their 	statutory 	rights,
	then 	the
rule
	is
	invalid
	even
	if
	interpreted 	lawfully
by
	the
	employer
	in
	practice
....
	And,
	we
note
	further 	that
	the
	risk
	of
	ambiguity
	must
be
	held
	against
	the 	promulgator 	of 	the
	rule
rather
	than
	against
	the
	employees
	who
	are
supposed
	to
	abide
	by
	that 	rule.
	(Footnotes
omitted.)
The 	term 	used
	in 	Section
	II
	of 	the 	rules
	which
	refer 	to
	the
20-minute 	periods 	as
	part of 	the
	"duty 	hours" 	of 	the 	workday,
are, 	absent 	greater 	definition,
	ambiguous 	and
	susceptible 	to
misinterpretation
	by
	the
	employees
	who
	are 	subject 	to
	them.
Because
	this
	amibiguity 	has
	resulted 	in 	interferences
	with 	the
exercise 	of 	statutory 	rights,
	the 	rule
	must 	be
	declared 	invalid
as
	applied.
	As
	presently
	worded,
	the 	combination 	of 	the
phrases 	"duty 	hours" 	and 	"duty 	time" 	with 	the 	definitions 	of
"non-duty 	times," 	which 	includes 	lunch 	and 	the 	nutritional
66

breaks, 	do 	not 	sufficiently 	clarify 	the 	rules 	to 	the 	extent
that 	an 	employee 	will 	understand 	that 	restrictions 	o~
solicitation 	or 	distribution 	during 	the 	20-minute 	periods 	do
not 	apply 	when 	the 	employees 	are 	not 	actually 	engaged 	in 	a
specific 	work 	assignment 	during 	such 	periods 	of 	time.24
The 	same 	finding 	is 	made 	concerning 	section 	II, 	paragraph 	B
of 	the 	regulations 	which 	bans 	the 	employees 	personal 	business
by 	employees 	during 	"duty 	hours," 	including 	the 	20-minute
periods. 	There 	has 	been 	no 	showing 	that 	this 	rule 	is 	necessary
to 	maintain 	production 	or 	discipline. 	(See 	McDonnell 	Douglas,
supra, 	citing 	Chrysler 	Corp. 	(1977) 	227 	NLRB 	1256 	[101 	LRRM 	2837]
24see 	McDonnell 	Douglas 	Corp. 	(1979) 	240 	NLRB 	794
[100 	LRRM 	1483]. 	In 	this.case 	the 	NLRB 	affirmed 	an
administrative 	law 	judge 	decision 	declaring 	invalid 	a 	rule
prohibiting 	"distribution 	of 	notices, 	pamphlets, 	advertisi~g
matter 	or 	any 	kind 	of 	literature 	on 	company 	property 	without
permission 	of 	management 	excepting 	matter 	that 	distribution 	of
which 	is 	protected 	by 	Section 	7 	of 	the 	National 	Labor 	Relations
Act 	as 	amended." 	This 	rule 	had 	been 	promulgated 	in 	response 	to
an 	earlier 	NLRB 	decision 	finding 	previous 	no-distribution 	rules
invalid. 	In 	this 	case, 	the 	ALJ 	stated:
[T)o 	the 	extent 	this 	rule 	applies 	to
employees 	exercise 	of 	their 	Section 	7 	rights
by 	distributing 	such 	material 	in 	non-working
areas 	during 	non-working 	time, 	current 	Board
decisions 	point 	to 	a 	determination 	that 	this
rule 	is 	invalid 	on 	its 	face 	because 	it 	can
reasonably 	be 	foreseen 	that 	employees 	would
not 	know 	what 	conduct 	is 	protected 	by 	the
National 	Labor 	Relations 	Act 	and! 	rather
than 	take 	the 	trouble 	to 	get 	reliable
information 	on 	the 	subject, 	would 	elect 	to
refrain 	from 	engaging 	in 	conduct 	that 	is 	in
fact 	protected 	by 	the 	Act. 	{240 	NLRB·
at 	802.)
67

at
	1259.)25	
Additionally,
	no
	evidence
	was
	presented
illustrating
	that
	permitting
	individual
	employees
	to
	consult
with
	Association
	representatives
	during
	non-working
	times
	of
the 	20-minute
	periods 	in
	non-working
	areas
	is 	likely
	to
	be
disruptive
	of
	the
	educational 	process.
	Thus,
	the
	enforcement
of
	this 	restriction
	during
	such
	times
	is
	unreasonable
	and
violates 	rights
	guaranteed 	by	
the 	Act.
The
	Association 	also 	challenges
	the
	provision 	in
section
	II,
	paragraph
	A,
	which
	restricts
	Association 	business
in
	non-work
	areas
	during
	non-work
	periods
	"away 	from
	students
and
	other
	non-employees."26 	During
	the 	hearing, 	the
	District
offered
	no
	explanation 	for
	this 	particular 	restriction.
In
	Richmond
	Unified
	School
	District/Simi
	Valley 	Unified
School
	District,
	supra, 	the
	Board
	concluded
	that
"reasonable" 	school
	employer
	regulations
	under
	section
3543.l{b) 	should
	be
	narrowly
	drawn
	to
	cover 	the 	time, 	place
	and
manner
	of
	employee
	organization
	activities
	without 	impinging
	on
the 	content 	of 	those
	activities
	unless 	they
	present
	a
substantial 	threat 	to 	peaceful 	school 	operations.
	Thus 	a
public 	school
	employer 	may
	legitimately
	promulgate
	rules 	to
prohibit 	disruptive
	conduct.
25However,
	it
	should
	be 	noted
	that 	in 	Chrysler
	Cor~.
(6th
	Cir.
	1979) 	595
	F.2d
	364 	[101
	LRRM
	2837], 	the 	Sixt 	Circuitdenied 	enforcement 	of 	this 	decision, 	concluding 	that 	the
employer's 	rules 	involved 	in 	this 	case 	were 	not 	invalid
	on
their 	face, 	not 	vague, 	ambiguous 	nor 	confusing.
26see 	full 	text, 	supra 	at 	p. 	11.
68

In 	this 	instance, 	the 	District 	failed 	to 	offer 	any 	special
interest 	of 	the 	employer, 	its 	students 	or 	others, 	that
justifies 	why 	Association 	business, 	which 	is 	to 	be 	conducted 	in
non-work 	areas 	during 	non-work 	periods, 	must 	further 	be
restricted 	from 	the 	presence 	of 	students 	and 	other
non-employees 	such 	as 	those 	listed 	in 	the 	examples 	in 	the
regulation.
In 	Regents 	of 	the 	University 	of 	California, 	University 	of
California 	at 	Los 	Angeles 	Medical 	Center 	(8/5/83) 	PERB 	Decision
No. 	329-H, 	the 	Board 	held 	that 	employee 	and 	non-employee
representatives 	enjoy 	a 	presumptive 	right 	of 	access 	to 	the 	work
place 	under 	EERA 	and 	HEERA. 	However, 	the 	employer 	is 	free 	to
rebut 	the 	presumption 	by 	demonstrating 	that 	such 	access 	would
be 	disruptive. 	The 	Board 	further 	recognized 	that 	in 	a 	given
situation, 	access 	by 	non-employees 	might 	be 	disruptive, 	while
access 	by 	employees 	would 	not.
In 	this 	case 	there 	has 	been 	no 	evidence 	demonstrating 	that
the 	conduct 	of 	Association 	business 	in 	non-work 	areas 	where
students 	or 	other 	non-employees 	might 	be 	present 	would 	cause
disruption 	or 	confusion 	at 	the 	work 	place. 	Hence, 	it 	is 	found
that 	this 	portion 	of 	the 	regulation 	is 	so 	vague 	and 	over-broad,
that 	it 	is 	invalid 	on 	its 	face. 	It 	is 	further 	concluded 	that
this 	prohibition 	is 	an 	impermissible 	denial 	of 	access 	under
EERA.
69

C. 	Conference/Preparation 	Periods
The 	Association 	additionally 	asserts 	that 	the 	same
restrictions 	on Association 	business 	found 	in 	section 	II,
paragraphs 	A and 	B of 	the 	regulations 	are 	unreasonable 	as
applied 	to 	the 	scheduled 	conference/preparation 	periods 	of
individual 	teachers.
Article 	V, 	section A, 	paragraph 	8, 	of 	the 	CBA 	states 	that
the 	preparation 	period 	is 	"paid 	working 	time" 	for 	specific
purposes 	related 	to 	teaching 	responsibilities 	or 	duties 	as
assigned 	by 	the 	principal. 	Article 	V, 	section 	A, 	paragraph 	9
provides 	for 	preparation 	time 	for 	elementary 	school
teachers.27
The 	District 	asserts 	that 	these 	contract 	terms 	serve 	as 	the
authority 	for 	its 	imposition 	of 	the 	"no 	access" 	rule 	during 	the
conference 	periods, 	and 	that 	by 	these 	specific 	terms, 	TALB 	has
waived 	its 	right 	to 	object 	to 	such 	restrictions 	on 	access.
TALB 	asserts 	that 	the 	issue 	regarding 	the
conference/preparation 	period 	is 	not 	whether 	the 	employees 	are
on 	"paid 	working 	time" 	but 	whether 	they 	are 	actually 	engaged 	in
specific 	non-discretionary 	assignments 	or 	duties 	during 	this
time. 	In 	its 	brief TALB 	further 	argues 	that 	the 	District 	has
failed 	to 	demonstrate 	that 	the 	conference/preparation 	periods
are 	expressly 	and/or 	uniformly 	reserved 	for 	preparation 	or
27see 	full 	text 	of 	these 	provisions, 	supra 	at 	p. 	23.
70

work
	assignments.
	Additionally,
	it
	is
	contended
	that
	there
	is
no
	basis,
	contractual
	or
	otherwise,
	for
	restricting
	access
	to
employees
	at 	least
	on 	a
	one-to-one
	basis
	for
	discussions 	or
investigations
	of
	such
	matters
	as
	grievances.
	For
	the 	reasons
stated
	below,
	these
	arguments
	are
	rejected.
It
	is
	noted
	that
	the
	Board
	in
	Long
	Beach,
	supra,
	was
	not
presented
	with
	the 	question
	and
	therefore
	did 	not
	make 	a
finding
	on
	whether
	the
	conference/preparation 	periods 	are
"working
	time."
	Also
	the
	Board
	was
	not
	confronted
	with
	the
situation
	where
	the
	litigating
	parties
	have
	specific
contractual
	provisions
	covering 	the
	subject
	being
	contested 	in
the 	employer's
	rules.
In
	this
	instance, 	the 	relevant 	contract
	language
specifically 	refers
	to
	the
	conference/preparation 	period 	as
"working
	time."
	Under
	the 	precedent 	of
	Long
	Beach,
	supra,
regarding 	the
	meaning
	of
	"working
	time,"
	this
	language
	raises
the 	question 	of
	a
	waiver.
	When
	this
	provision
	was
	first
negotiated~n-1979, 	the
	parties
	did 	not
	have
	the 	precedent 	of
Long
	Beach,
	supra, 	available 	to
	them. 	Even
	so,
	this
	language
seems
	unmistakably
	clear 	within 	the 	context 	of 	the
	rest 	of
	this
provision.
	Following 	the 	issuance 	of
	Long
	Beach,
	there
	is
	no
evidence
	that 	either 	side 	intended 	or
	tried 	to 	negotiate
	a
change 	in 	this
	language.
In 	contradistinction 	to 	the 	ambiguous 	terms 	used 	in
Article
	IV,
	section
	A and 	C, 	as 	discussed 	above~ 	the 	language
71

in 	the 	cited 	paragraphs 	of 	Article 	V appear 	clear 	as 	to 	their
intent 	and 	purpose 	for 	the 	use 	of 	this 	time. 	The 	weight 	of 	the
evidence 	supports 	this 	finding. 	All 	witnesses 	indicated 	a
clear 	understanding 	and 	a 	fairly 	uniform 	practice 	about 	how
this 	time 	is 	spent 	during 	the 	instructional 	day. 	The 	majority
of 	teachers 	use 	this 	time 	performing 	the 	kind 	of 	teaching 	type
duties 	described 	earlier. 	The 	use 	of 	the
conference/preparation 	period 	as 	a 	break 	time 	or 	variations 	in
use 	for 	unauthorized 	personal 	business 	is 	the 	exception, 	rather
than 	the 	rule. 	Even 	though 	most 	teachers 	do 	not 	have 	regular
specific 	assignments 	during 	this 	period, 	it 	is 	not 	perceived 	as
a 	time 	during 	which 	they 	have 	an 	option 	about 	working 	or 	not
working. 	Absent 	a 	specific 	assignment 	by 	the 	principals, 	the
individual 	teacher 	can 	generally 	exercise 	discretion 	about
which 	work-related 	duties 	that 	person 	will 	perform. 	However,
the 	teachers 	understand 	that 	this 	period 	is 	expressly 	reserved
for 	non-classroom 	work.
Although 	PERB 	has 	yet 	to 	be 	confronted 	with 	the 	question 	of
waiver 	of 	statutorily 	prescribed 	access 	rights, 	the 	matter 	has
been 	considered 	in 	the 	private 	sector.
In 	NLRB 	v. 	United 	Technologies, 	Corp. 	(2d 	Cir. 	1983)
706 	FG2d 	1254 	(113 	LRRM 	2320] 	the 	Court 	held 	that 	an 	employer
rule, 	prohibiting 	employees 	from 	engaging 	in 	union 	solicitation
during 	paid 	non-working 	time, 	did 	not 	violate 	the 	employees'
Section 	7 	rights 	under 	the 	NLRA. 	This 	case 	grew 	out 	of 	a
72

challenge
	by
	the
	employer
	to
	an
	earlier
	determination
	by
	the
court 	in
	United
	Aircraft
	Corporation
	v.
	NLRB
	(2d
	Cir.
	1971) 	440
F.2d
	85 	[76
	LRRM
	2761] 	which
	upheld
	a
	Board
	determination
	that
the
	limited
	no-solicitation 	rule,
	maintained
	by
	the
	employer
(then
	known
	as 	United
	Aircraft
	Corporation),
	which
	was
substantially 	identical
	to
	the
	rule
	challenged 	here,
	was
authorized
	under
	the
	collective
	bargaining
	agreement 	with
	the
union
	and
	did 	not
	infringe
	fundamental
	employee
	rights
	under
Section
	7
	of
	the
	NLRA.28
Absent
	PERB
	precedent,
	it
	is
	appropriate 	to
	apply
	private
sector
	precedent.
	Applying
	the 	precedent
	of
	United
Technologies
	to
	this
	case,
	it
	is
	concluded
	that
	the
	restriction
against
	access 	for
	association
	business
	as
	applied 	to 	the
conference/preparation 	periods
	is
	expressly 	authorized
	by
	clear
and
	unmistakable
	terms
	of 	the
	CBA.
	Those 	same
	terms
	constitute
a
	waiver
	of 	the
	Association's 	right 	to 	object 	to 	the
restriction
	during
	such
	periods 	of 	the
	instructional
	day.
28The
	earlier
	decision
	was
	challenged
	by
	the 	union
following 	the
	Supreme
	Court's 	decision 	in
	NLRB
	v.
	Magnavox
Company 	(1974) 	415 	U.S. 	322 	[85
	LRRM
	2475], 	which
	the
	Union
contended
	effectively
	overruled 	the
	court's
	decision 	in 	the
earlier
	United
	Aircraft 	case. 	In
	Magnavox,
	the
	union
challenged
	a 	company
	rule 	that 	prohibited
	employees 	from
distributing 	literature
	anywhere 	on
	the
	company
	property
	at
	any
time.
	The
	no-distribution 	rule
	had 	been 	maintained 	for
	some
16
	years, 	antedating 	the
	first
	collective 	bargaining 	agreement
between Magnavox 	and
	the 	union.
	The
	NLRB
	found
	that 	the
blanket 	no-distribution 	rule 	violated 	fundamental 	employee
rights 	that 	could 	not 	be 	waived 	by 	the 	union 	and
	collectivebargaining.
73

Furthermore,
	since
	the
	enforcement 	of
	this 	restriction
	is
	to
	be
limited	
to 	specific
	"working 	time"
	during 	the 	duty 	hours
	of
	the
workday,
	it
	is
	presumptively
	valid.
	Because
	the
	parties
	have
contractual
	provisions
	which
	permit
	released
	time
	during
	the
instructional
	day
	for
	personal 	matters
	such
	as
	grievance
processing,
	this 	restriction
	does
	not
	infringe
	upon
	fundamental
employee
	rights
	guaranteed
	by EERA.29
D.
	Advance 	Arrangement 	Rule
	Regarding
	Use
	of
	District
Facilities
TALB
	further
	challenges
	the 	reasonableness 	of 	the
District's
	regulation 	requiring 	that
	room
	arrangements
	for
informal 	or
	formal 	meetings 	with
	large
	groups
	of
	employees 	be
made
	at
	least
	one
	day
	in
	advance
	of
	the 	meeting.
	Additionally,
TALB
	considers
	the
	rule
	which
	permits
	site
	managers
	to 	specify
the
	locations
	where
	its
	representatives
	can
	meet
	with 	employees
to
	be
	an
	additional
	unreasonable
	restriction
	on
	its
	rights 	to
use
	District 	facilities.
	These
	two
	regulations
	are
	found
	in
section
V,
	paragraph 	c,
	subparts
	land
	2.30
The
	District
	responds
	to
	this
	challenge
	by
	asserting
	that
these 	rules 	are 	reasonable 	in 	that
	they
	were
	promulgated
pursuant 	to 	the 	express 	authorization 	of 	Article
	IV,
	section
	A,
29see
	full 	text 	of 	Article
	XIV,
	section
	G,
	paragraph 	4,supra
	at
	p. 	25.
	No
	attempt
	is
	made
	here,
	nor
	is
	it
	necessary
to 	interpret 	section
	A,
	paragraph
	l
	of 	this 	Article 	as 	to
	what
constitutes
	a
	"grievance" 	for 	purposes 	of 	application 	of 	the
released 	time 	provision.
30see 	full 	text 	of 	these 	regulations, 	supra 	at 	p. 	14.
74

paragraph
	2
	of
	the
	CBA.31 	The
	District
	argues 	the
reasonableness
	of 	the
	24-hour
	advance
	request
	requirement,
contending
	that
	this
	rule
	is
	actually
	less
	restrictive
	than 	the
language
	of 	the
	contract
	provision.
	It
	adds
	that
	a
	rule
	of
this
	type
	is
	necessary
	to
	enable 	the
	District
	to 	properly
accommodate
	the
	various 	requests
	made	
by	
student, 	faculty
	and
civic
	groups
	who
	use 	the
	facilities
	for
	various
	types
	of
meetings
	and
	activities.
	The
	District
	buttresses 	this
	argument
by
	citing
	that
	because
	its
	Civic
	Center
	Act
	obligation
	as
	a
public
	school
	employer
	to
	make
	its 	facilities
	available
	as
	a
community
	resource, 	the
	24-hour 	advance
	request 	rule
	is
	merely
an
	advance
	scheduling 	requirement,
	which
	is
	imposed 	on
	all
groups
	who
	utilize 	District 	facilities.
	Thus,
	pursuant
	to
	its
established 	policy,
	all
	groups
	desiring 	to
	use
	the
	facilities
under
	the 	Civic 	Center 	Act,
	must
	submit
	applications
	for
permits
	at 	least
	two 	weeks
	prior
	to
	the
	date 	of 	the 	event
	for
which
	the
	site
	will
	be
	needed.
Thus 	two
	prior
	arrangement
	rules 	also 	present 	the 	question
of 	whether 	the 	Association 	has
	contractually
	agreed
	to
	certain
time, 	place
	and 	manner
	restrictions
	upon
	its
	access
	rights
	and,
if
	so,
	whether 	such 	agreement
	constitutes
	a
	waiver 	of 	the
	right
to
	later
	challenge 	enforcement
	of 	the 	rules.
3lsee 	full 	text 	of 	this 	provision, 	supra 	at 	p. 	19.
75

A
	reading
	of
	Article
	IV,
	section
	A,
	paragraph
	2
	indicates
that
	TALB
	has
	expressly
	agreed
	that
	its
	employee
	and
non-employee
	representatives
	must
	make 	a
	24-hour
	advance
request
	and
	obtain
	approval 	of 	the
	site
	manager
	before
utilizing
	certain
	areas 	of
	a 	campus
	for 	Association
	business.
At
	the
	hearing
	no
	evidence
	was
	presented 	to 	indicate
	that
	a
different 	interpretation
	should
	be
	given
	to
	this
	language.
This
	language,
	on
	its
	face,
	seems
	clear
	and
	unmistakable 	as
to
	the
	particular 	limitations
	placed
	on
	the
	Association's
	right
of 	access 	during 	the
	District's
	hours
	of 	operation.
In
	Richmond/Simi,
	supra,
	the
	Board
	concluded
	that
	narrowly
drawn
	"time, 	place
	and 	manner"
	access
	regulations 	are
reasonable 	within 	the
	meaning
	of
	section 	3543.l(b).
	Here, 	the
above
	contract 	provision
	can
	be
	characterized
	as
	a
	"time, 	place
and 	manner"
	limitation
	which
	constitutes
	a
	clear
	and
unmistakable 	waiver
	of 	unfettered 	rights
	of 	access
	by TALB.
The
	District's
	prior
	arrangement
	and
	approval
	rules 	are
	not
inconsistent
	with
	this 	contract 	provision. 	Generally, 	in
practice
	it
	has 	not 	applied
	this
	requirement 	as
	strictly
	as 	the
contract
	would
	permit
	it
	toe
Even 	though 	a
	waiver
	is
	found
	to
	exist,
	it
	is
	not
impermissible 	since 	the 	contract
	and
	the 	rules
	do
	not
	totally
foreclose 	the 	Association's 	right 	of 	access 	to 	the 	employees 	or
their 	place 	of 	work. 	In 	fact 	in 	practice, 	the 	Association 	is
not 	required 	to
	make 	a 	one-day 	advance 	request 	for 	access 	to
76

the
	teachers'
	lounges
	or 	dining
	rooms
	to
	conduct
	its
	regularly
scheduled
	visitations
	unless
	a
	large
	group
	meeting
	is
	to
	be
held.
Even
	if
	it
	is
	argued
	that
	the
	contract
	provision
	does
	not
constitute
	a
	clear
	and
	unmistakable
	waiver
	of
	the
	right 	to
	use
Diptrict
	facilities
	without
	making 	a
	24-hour
	advance
	request,
this 	rule,
	under
	the
	circumstances,
	would
	not
	be
	unreasonable.
In
	Long
	Beach
	Unified
	School
	District,
	supra, 	the
	Board
considered
	a
	similar 	prior
	arrangement
	rule
	that
	required 	the
employee
	organizations 	to
	make 	one 	day 	advance
	room
arrangements. 	In
	that
	case
	AFT,
	the 	charging
	party,
	challenged
a
	rule
	requiring
	that 	prior
	arrangements
	be 	made
	for 	small
group 	meetings.32 	In
	Long
	Beach
	the
	Board 	found
	the
	prior
arrangement 	requirement
	to
	be
	reasonable
	and
	justified
	where 	an
employee
	organization
	wanted
	to 	secure
	use
	of
	rooms
	not
normally
	used
	by
	non-working 	employees.
	However,
	the
	Board
found
	that
	to 	the 	extent 	that
	the
	District's
	rule
	appeared
	to
require 	that
	all
	meetings 	with 	four 	or
	more
	employees
	be
conducted
	at
	such
	pre-arranged
	facilities,
	the 	regulation
	was
unreasonable 	as 	an
	artificial
	limitation
	based
	on
	the
	number
	of
employees 	with
	whom
	the 	representative
	met.
The
	District
	here 	has
	shown 	ample
	justification
	for
	its
one-day 	advance
	notice 	requirement 	for 	special
	room
	use.
	The
demand
	for 	use 	of
	rooms
	before, 	during
	and
	at 	the 	end
	of 	the
32see 	full 	text 	of 	this 	regulation, 	supra 	at 	p. 	9.
77

instructional
	periods,
	particularly 	at
	the
	junior
	high
	and
senior
	high
	levels,
	is 	fairly
	substantial.
	Based
	on
	the
evidence 	of 	the
	number
	of
	rooms
	available
	at
	a
	particular
	site
for 	assignment
	at
	a
	given 	time,
	and
	the
	number
	of
	rooms
actually
	used
	by
	students, 	faculty
	and
	other
	organizations,
	the
requirement
	of
	advance
	room
	arrangement
	is 	justified.
	This
requirement
	has
	not
	had
	the
	effect
	of
	denying
	TALB
	the 	use
	of
District 	facilities
	for
	organizational
	activities
	conducted
during
	non-working
	hours.
TALB
	presented
	several 	instances
	where
	its
	representatives
were
	denied 	the
	use
	of
	a
	particular
	room	
by	
a
	site
	manager
	with
the
	result
	that
	the
	rooms
	to
	which
	they
	were
	assigned
	were
considered 	by	
them
	to
	be
	less 	desirable
	or
	suitable
	for
	the
type
	of
	meeting
	that
	was
	conducted 	than 	the
	teachers'
	lounges
or 	dining
	rooms. 	However, 	a
	close
	examination
	of 	the
	instances
where
	the
	room
	use
	was
	denied
	indicates 	that
	the
	local 	faculty
representative 	failed 	to
	submit
	the 	request
	at
	all
	or
	failed
	to
submit
	it
	at 	least
	one 	day
	in
	advance
	of 	the 	scheduled
meeting.
There
	is
	evidence 	of
	some
	inconsistency 	with
	respect 	to
	the
interpretations
	by
	some
	local
	site
	managers 	as
	to
	what
	areas
constitute
	work
	versus
	non-work
	areas 	for 	purposes 	of
meetings.
	On
	one
	occasion
	when 	Goddard 	appeared
	at
	a
	facility
for
	a 	meeting 	where 	a 	24-hour 	advance 	request
	had 	been
78

submitted,
	he
	and
	the
	teachers
	were
	denied 	the
	use
	of
	a
classroom,
	even 	though
	the
	room 	was
	not
	in
	use
	or 	scheduled
	to
be
	used
	at
	the
	time
	of
	the 	meeting.
	The
	reason 	given
	by
	the
site
	manager
	for
	changing
	the
	location
	was
	that
	the 	classroom
was 	a 	"work
	area."
	Although
	this
	instance
	of
	enforcement 	might
be
	viewed 	as
	an
	unreasonable
	application
	of
	a
	valid 	rule,
	the
TALE
	representative
	was
	not
	actually
	denied
	access
	nor
	did 	the
alternative
	room
	provided
	result
	in
	an
	artificial
	limitation
	of
the
	Association's 	right
	of 	access
	to
	its
	unit
	members.
	Although
there 	are 	other 	instances
	where
	TALB
	representatives
	and
	site
managers
	had
	disputes
	over
	the
	enforcement 	of 	the
	24-hour
advance
	request 	requirement,
	there
	is
	no
	evidence
	that
	where
the
	contract
	and
	regulation
	requirements
	were
	abided 	by,
	access
was
	unreasonably 	denied 	or 	the
	rules
	were
	discriminatorily
applied 	to
	TALB
	representatives.
	The
	fact 	that
	some
	of 	the
assigned
	rooms 	have
	not 	always
	satisfied
	the
	specific 	desires
or 	preference 	of
	TALB
	representatives
	does
	not
	mean
	that 	the
enforcement
	of 	these 	rules 	constitutes 	either
	an
	unreasonable
application 	or
	violation
	of 	the 	Act.
E. 	Summary
	of 	Findings
It
	has 	been 	found
	that
	the
	District's
	promulgation
	and
application 	of
	its
	rule 	prohibiting
	all
	Association 	business
during 	the 	20-minute 	periods 	before
	and
	after
	the
	instructional
day
	is
	an 	unreasonable 	ban 	on
	organizational 	access 	with
respect 	to 	those 	employees 	who
	are 	not 	performing 	assigned 	work
79

and
	are
	in
	non-working
	areas 	during 	these 	periodse
	This
	rule,
as
	applied
	during
	these
	times
	is
	unreasonable 	for 	the 	following
reason.
	Although
	the
	20-minute
	periods 	are
	clearly 	part
	of
	the
teachers'
	duty
	hours
	of 	the
	workday,
	these
	times
	are
	not
expressly
	and/or 	uniformly
	reserved 	or
	utilized
	for
specifically
	assigned
	duties.
	Thus
	it
	is
	found
	that
	the
application
	of
	this
	ban
	against
	access 	during 	these
	times
	of
the
	workday
	has
	unreasonably 	denied
	to
	the
	employee
organization
	rights
	guaranteed	
by	
section
	3543.l(b)
	and
constitutes
	a
	violation
	of 	section
	3543.S(b)
	and
	3543.S(a)
derivatively.
Additionally,
	it
	has 	been 	found
	that
	the
	part
	of
	this
	rule
prohibiting
	Association 	business 	in
	non-working
	areas 	during
non-work
	times
	from
	occurring 	in 	or 	near 	the 	presence 	of
students
	or 	other
	non-employees
	is
	impermissibly 	over-broad
	and
vague 	on
	its
	face.
	As
	presently
	worded 	and
	if
	applied,
	this
rule
	has 	the
	potential 	effect
	of
	imposing
	unreasonably 	broad
restrictions
	on
	the
	employee
	organization's 	right
	of 	access.
It
	therefore 	is 	also 	violative 	of 	section 	3543.S(b),
	and
	of
section
	3543.S(a)
	derivatively.
The 	same
	rule
	banning
	Association 	business 	during 	duty
hours
	was 	found
	to
	be
	reasonable 	as 	applied 	to 	the 	conduct
	of
unauthorized 	organizational 	activities
	during 	the 	assigned
conference/preparation 	periods. 	Additionally,
	it
	was 	concluded
that 	the 	enforcement 	of 	the 	ban 	during 	this
	time
	is 	expressly
80

authorized
	by
	the
	CBA.
	This
	contract
	provision
	was
	held
	to
	be
a
	permissible
	waiver
	of
	the
	right
	of 	access 	during
	a
non-classroom
	period
	expressly
	referred
	to 	in 	the
	CBA
	as
"working 	time"
	during 	the 	duty
	day.
	Therefore
	this
	part 	of
	the
allegation
	is
	dismissed.
It
	was
	also
	found
	that
	the
	regulation
	mandating
	24-hour
advance
	request
	and
	prior
	approval 	of
	room
	arrangements
	is
reasonable
	as
	a
	legitimate
	scheduling 	requirement.
	Although
there
	are
	some
	apparent
	inconsistencies 	in
	the
	way
	in
	which
this
	rule
	has 	been
	interpreted
	by
	administrative 	personnel,
there
	is
	no
	evidence
	that
	TALB
	has
	been
	unreasonably 	denied
access
	where
	its
	representatives
	have
	complied 	with
	the
District's
	access 	procedure.
	Additionally,
	it
	was
	determined
that 	this
	rule 	also
	is
	authorized
	by
	the
	CBA.
	This
	contract
term
	is
	found
	to
	be 	a
	permissible
	limitation
	on
	access.
	Thus,
this 	part
	of 	the
	allegation 	is
	also
	dismissed.
REMEDY
The
	Educational
	Employment
	Relations
	Act
	provides
__
that
	upon
the 	finding 	of
	a
	violation
	of
	its
	terms,
	PERB
	has 	broad
remedial
	powers
	to 	"take
	such
	action
	...
	as
	will 	effectuate
the
	policies 	of 	[the Act]" 	(section 	3541.S(c)).
It
	having 	been 	found
	that
	the 	employer 	has
	violated 	section
3543.S(a)
	and 	(b)
	of
	EERA,
	it
	is 	appropriate 	to 	order 	that 	the
District
	cease
	and
	desist
	from 	unreasonably 	denying 	and
interfering 	with 	the 	employee
	organization's 	right 	of 	access
granted 	by 	section 	3543.l(b) 	of 	the 	Act.
81

Specifically, 	the 	District 	should 	be 	ordered 	to 	cease 	and
desist 	from 	enforcing 	its 	regulations 	so 	as 	to 	deny 	to 	the
Association 	and 	its 	representatives, 	the 	right 	of 	access 	to
employees 	during 	the 	20-minute 	periods 	before 	and 	after 	the
instructional 	day 	when 	such 	employees 	are 	not 	performing
specifically 	assigned 	work 	and 	are 	in 	non-work 	areas.
Additionally, 	the 	District 	should 	be 	ordered 	to 	cease 	and
desist 	from 	unreasonably 	requiring 	that 	Association 	activities
with 	non-working 	employees 	in 	non-work 	areas 	be 	conducted 	away
from 	students 	or 	other 	non-employees. 	The 	District 	should 	be
ordered 	to 	cease 	and 	desist 	from 	enforcing 	its 	regulations 	so
as 	to 	interfere 	with 	the 	rights 	of 	employees 	to 	participate 	in
the 	activities 	of 	employee 	organizations, 	or 	refrain 	from 	doing
so, 	by 	unreasonably 	denying 	access 	as 	set 	forth 	above.
It 	also 	is 	appropriate 	that 	the 	District 	be 	required 	to
post 	a 	notice 	incorporating 	the 	terms 	of 	the 	order. 	The 	notice
should 	be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	District
indicating 	that 	it 	will 	comply 	with 	the 	terms 	thereof. 	The
notice 	shall 	not 	be 	reduced 	in 	size. 	Posting 	such 	a 	notice
will 	provide 	employees 	with 	notice 	that 	the 	District 	has 	acted
in 	an 	unlawful 	manner 	and 	it 	is 	being 	required 	to 	cease 	and
desist 	from 	this 	activity. 	The 	notice 	effectuates 	the 	purposes
of 	the 	EERA 	that 	employees 	be 	informed 	of 	the 	resolution 	of 	the
controversy 	and 	will 	announce 	the 	District's 	readiness 	to
comply 	with 	the 	ordered 	remedy. 	{See 	Placerville 	Union 	School
82

District
	(9/18/78)
	PERB
	Decision
	No.
	69.) 	Also,
	in
	Pandol
	and
Sons
	v.
	ALRB
	and
	UFW
	(1979) 	98
	Cal.App.3d
	580,587,
	the
California
	District
	Court
	of
	Appeal 	approved
	a
	posting
requirement.
	The
	U.S.
	Supreme
	Court
	approved
	a
	similar
	posting
requirement
	in
	NLRB
	v.
	Express
	Publishing
	Co. 	(1941) 	312
	U.S.
426
	[8
	LRRM
	415].
PROPOSED
	ORDER
Upon
	the 	foregoing
	findings 	of
	fact,
	conclusions 	of
	law,
and
	the
	entire
	record 	in
	this
	case,
	it
	is
	hereby
	ORDERED
	that
the
	Long Beach
	Unified
	School
	District
	and
	its
	representatives
shall:
1.	
CEASE
	AND
	DESIST
	FROM:
(a)	
Enforcing 	the
	District
	regulation
	which
	prohibits
the 	Teachers 	Association 	of
	Long 	Beach 	from
	having 	access
	to
employees
	to
	conduct
	organizational 	business 	during 	the 	time
employees
	are 	present 	at
	the
	District 	facilities,
	in
	non-work
areas
	and
	not
	engaged
	in 	assigned
	work
	during 	the 	20-minute
periods 	before 	or
	after
	the
	instructional
	day.
(b)	
Enforcing 	the
	District
	regulation
	which
	prohibits
employees
	from
	having 	access 	to 	the 	Teachers 	Association 	of
Long 	Beach
	during 	the 	time 	employees
	are 	present 	at 	District
facilities,
	are 	in
	non-work
	areas
	and
	not 	engaged
	in 	assigned
work
	during 	the 	20-minute 	periods 	before 	or
	after
	the
instructional
	day.
83

(c) 	Enforcing 	the 	District 	regulation 	which 	requires
that 	the 	Teachers 	Association 	of 	Long 	Beach 	conduct
organizational 	business 	with 	employees 	during 	non-work 	times 	in
non-work 	areas 	which 	are 	away 	from 	students 	or 	other
non-employees.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS 	ACT:
(a) 	Within 	ten 	(10) 	workdays 	of 	service 	of 	a 	final
decision 	in 	this 	matter, 	prepare 	and 	post 	copies 	of 	the 	Notice
to 	Employees 	attached 	as 	an 	appendix 	hereto, 	signed 	by 	an
authorized 	agent 	of 	the 	employer, 	indicating 	that 	the 	employer
will 	comply 	with 	the 	terms 	of 	this 	Order. 	Such 	posting 	shall
be 	maintained 	for 	at 	least 	thirty 	(30) 	consecutive 	workdays 	at
the 	employer's 	headquarters 	office 	and 	at 	all 	locations 	where
notices 	to 	certificated 	employees 	are 	customarily 	posted. 	The
notice 	must 	not 	be 	reduced 	in 	size 	and 	reasonable 	steps 	should
be 	taken 	to 	insure 	that 	it 	is 	not 	defaced, 	altered, 	or 	covered
by 	any 	material:
(b) 	Unless 	otherwise 	directed 	by 	the 	Los 	Angeles
Regional 	Director 	of 	the 	Public 	Employment 	Relations 	Board,
written 	notification 	of 	the 	actions 	taken 	to 	comply 	with 	this
order 	shall 	be 	made 	to 	the 	Regional 	Director 	within 	thirty 	(30)
workdays 	from 	the 	date 	of 	service 	of 	the 	final 	decision
herein. 	All 	reports 	to 	the 	regional 	director 	shall 	be 	served
concurrently 	on 	the 	Charging 	Party 	herein.
84

IT 	IS 	FURTHER 	ORDERED 	that 	all 	other 	allegations 	of 	the
Charge 	ana 	Complaint 	are 	DISMISSED.
Pursuant 	to 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall
become 	final 	on 	June 	20, 	1984, 	unless 	a 	party 	files 	a 	timely
statement 	of 	exceptions. 	In 	accordance 	with 	the 	rules, 	the
statement 	of 	exceptions 	should 	identify 	by 	page 	citation 	or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32300. 	Such 	statement 	of 	exceptions 	and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations 	Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento 	before 	the 	close 	of 	business 	(5:00 	p.m.) 	on
June 	20, 	1984, 	or 	sent 	by 	telegraph 	or 	certified 	United 	States
mail, 	postmarked 	not 	later 	than 	the 	last 	day 	for 	filing 	in
order 	to 	be 	timely 	filed. 	See 	California 	Administrative 	Code,
title 	8, 	part 	III, 	section 	32135. 	Any 	statement 	of 	exceptions
__and 	supporting 	brief 	must 	be 	served 	concurrently 	with 	its
filing 	upon 	each 	party 	to 	this 	proceeding. 	Proof 	of 	service
shall 	be 	filed 	with 	the 	Board 	itself. 	See 	California
Administrative 	Code, 	title 	8, 	part 	III, 	section 	32300 	and 	32305.
Dated: 	May 	31, 	1984
W. 	JN'THOMAS
Administrative 	Law 	Judge
85

تمـ